The Nisga’a Individual Landholding Project is an initiative of Nisga’a Lisims Government that is intended to help Nisga’a citizens to become prosperous. The main product of this initiative is the proposed Nisga’a Landholding Transition Act. This presentation is meant to tell you about the Act and how it might work for you and your family. ***
First, an overview of the project so far. As you can see, it has been going on for some time, and I am sure that many of you have had some involvement in the discussions about it before now. I won’t go through all of this in detail – it is a little dry – but here is a summary of the project so far: ***
This project really began in 2006 when WSN held an Economic Roundtable to look for ways to support the prosperity and self-reliance of Nisga’a citizens. *** Their discussions led them to the current system of Nisga’a Village Entitlements, and the difficulties that people have because they can’t use their homes as security for a mortgage. As a result of WSN’s discussions, and WSN’s direction, a discussion paper was developed that was related to the challenges that has been observed in the Land Title Office that were related to the way in which Nisga’a citizens held their residential properties. ***
That paper set out the way that the current Nisga’a landholding system worked for individual residents, what it’s objectives had been, and how well it met those objectives. Specific problems that were highlighted had to do with *** the inability to enter into a mortgage *** The complexity of the land title system *** Matters related to the Village Government’s role as owners of all the residential land *** And problems that Nisga’a citizens encountered when leasing or renting a property with an entitlement The discussion paper made no recommendations. It simply emphasized that WSN had the jurisdiction to change its legislation in whatever way that would best suit its citizens. As you know, the Nisga’a Nation is unlike other First Nations in this regard, and can make its own decisions about its lands. ***
The discussion paper eventually brought about the community discussions that were held in 2007. Staff of the Lands and Resources Department came to each Village and each Urban local, accompanied by the Chairperson of WSN’s Lands and Resources Committee. We asked you questions: *** What forms of ownership make sense to you? *** How should mortgages be handled? *** How much risk is worth taking to increase economic opportunity? *** How can we best support people to deal with complex legislative processes? *** And what should the rules be about renting and leasing? ***
And we presented a series of options for consideration. You may remember the posters that we left behind, even if you didn’t attend the discussions. *** The options ranged from the status quo - Nisga’a Village Entitlements and Nisga’a Nation Entitlements - to full unrestricted fee simple ownership, in which anyone could own residential land. In each community we had a discussion about the balance between protection of the land base and the ability to use the land for economic development purposes. The discussions were far-ranging and interesting, and provided a lot of information. ***
After the meetings we reported back to the Executive. That report consisted of a record of every issue raised at every meeting, a paper prepared by Marcus Bartley on the legislative issues to be considered, and companion report that informed the Executive about the many related matters that were brought forward by you in our discussions. The members of the Executive listened. *** They heard that people wanted to be treated like everyone else – to be able to own land, use land as security for a mortgage, and transferor bequeath their land to whomever they wanted to – including a non-Nisga’a spouse or parent, or anyone else. *** They also heard concerns about maintaining control of the land base, and the fears that removing restrictions from land ownership could, ultimately result in losing the land. After hearing the concerns raised by Nisga’a citizens, and looking at a number of legislative options, the Executive spent 2 months considering the issues raised before they made their decision. ***
It wasn’t until September that the Executive made its decision, and it decided that despite the risks, Nisga’a Citizens were entitled, like everyone else, to have the opportunity to really own their residential lots, and, if they wanted, use the lots as security for a mortgage. *** Legislation that would create the possibility of unrestricted fee simple ownership of residential lots in Nisga’a villages. ***
Once the Executive had given direction, legal counsel went to work. Over the course of the next year there were a number of legislative drafts, and on-going discussions to ensure that the legislation was as clear and simple as possible, and that it was headed in the right direction. The Executive provided the criteria that needed to be met: *** The legislation needed to provide Nisga’a citizens with an opportunity to own their residential properties in fee simple, *** It needed to protect the Village’s ability to control use and development of residential land, no matter who owns it, *** And it needed to be voluntary – people who wanted to keep their existing Nisga’a Village Entitlements or Nisga’a Nation Entitlements must be able to do so. The legislation, entitled the Nisga’a Landholding Transition Act was introduced at WSN in March of this year. ***
The Act is the first of a number of legislative changes that would be required to change the way that Nisga’a citizens hold residential lands. It represents a big step forward for Nisga’a citizens, and of course with a big step forward comes change, which is both exciting and scary. In order to know if it will work for you, you need to really understand it. So let’s take a closer look at the Nisga’a Landholding Transition Act . ***
First and foremost, the legislation is meant to address the relationship between *** economic opportunity for Nisga’a citizens and *** the security of Nisga’a Lands. It is intended to do that in a way that *** respects Nisga’a citizens’ ability to make decisions related to their residential lands, just like everyone else in British Columbia, and, if they think it is the best situation for them, to own their lands in fee simple. But these objectives are very general, and it is important to look more closely: What land does the legislation apply to? What protection is built into the legislation? Who is it intended to benefit? How does it work? ***
This legislation does not apply to land outside of Nisga’a Villages. Lands outside the villages is owned by the Nisga’a Nation, and the rules related to how and if it can be transferred are set out in the Treaty and Constitution. This legislation only affects lands in Nisga’a Villages that are zoned for residential use. People wishing to obtain Village Lands for other purposes (such as a business or commercial use) still need to negotiate a lease with the Nisga’a Village, as owner of the land. Nisga’a Land totals approximately 2000 sq km, which is 200,000 ha. The lands granted to the Nisga’a Villages at the time of the Final Agreement total approximately 4300 ha Of those lands, about 200 ha are within the Villages where people live. And of those Village areas, more than 50% is taken up by roads, schools, playgrounds, churches, administrative facilities, and other public uses. *** That leaves approximately 100 ha or 1/2000 of Nisga’a Lands, that are the subject of this new legislation. ***
Here is an illustration of the amount of Nisga'a Land we are talking about: *** Nisga’a Land is shown here as green – again there are about 2000 sq km of Nisga’a Land. All the lands granted to the villages by the Nisga’a Nation at the time of the final agreement, are shown here as white *** They total about 43 sq km. An estimate of the area of the villages that is currently occupied is shown in turquoise. *** It is about 2 sq km, and the land that is currently used for residential purposes is only half of that, or 1 sq km. We know that Village Governments have expansion plans, and that this legislation could, if the Village wished, apply to new subdivisions, but no matter how ambitious the village’s building program may be, this is a small amount of land. This is a small number, but it’s an important one. This is the land where you live, raise your families, and have your homes. So you really need to understand what is being proposed. ***
What safeguards are there in the legislation to protect the land base? *** Well, first of all, the Nisga’a Landholding Transition Act is consistent with both the Nisga’a Constitution and the Nisga’a Final Agreement. *** As well, the land will always be Nisga’a Land, and subject to Nisga’a Law, no matter who owns it. *** In this case, jurisdiction lies with the Villages, and each Village will regulate the development that takes place on the land, and the kinds of land uses that are allowable, through its zoning laws. ***
*** The legislation provides an opportunity for a Nisga’a Village to offer a grant of a residential lot to a Nisga’a citizen only. A village cannot grant land to a non-Nisga’a, or grant land for any purpose other than residential. The legislation is specific in it’s intent – it is meant to provide Nisga’a citizens with an opportunity for fee simple ownership of their residential lots, in the same way that all other citizens of British Columbia can own their residential lots. *** Once a Nisga’a citizen owns a lot, however, they can transfer it freely. The legislation would allow a Nisga’a citizen to transfer, sell, or bequeath their home to anyone, Nisga’a or non-Nisga’a. They could also legally rent or lease their home if they chose to. *** This unrestricted ability to transfer the land is necessary because if you wish to use you land for security for a mortgage, the bank needs to know it can take the land and sell it if you don’t pay off the debt. This is the problem that exists now – banks will not accept a mortgage over residential Nisga’a Lands, because they cannot take the land and sell it to recover an unpaid debt. ***
So how would the new legislation work? The legislation considers two different situations: Residential lots that currently are subject to an Entitlement, and Residential lots that do not have an Entitlement registered against them We will show you the first situation first – a residential lot in a Nisga’a Village that currently has a Nisga’a Village Entitlement registered against it. ***
Under this Act, a Nisga’a Village Government may, for no charge, offer fee simple ownership to current entitlement holders if the following conditions are met: *** 1.There is no mortgage registered in the Nisga’a Land Title office for the property : this is because when the property is granted in fee simple ,a mortgage of the entitlement would no longer exist, leaving the party that lent the money with no way to collect it *** 2.The lot is .2 ha or less: this is a large enough lot size to include every occupied residential lot in every village that currently has an entitlement . Point 2 of a ha is approximately ½ acre. *** 3. The principal use of the parcel is residential, in accordance with a zoning law enacted by the Village Government.: this is so the Village Government can continue to exercise its jurisdiction with respect to use and development of the property no matter who owns it.) *** Participation is voluntary. The holder of the Nisga’a Village Entitlement or Nisga’a Nation Entitlement can accept or decline the offer. It is important to note, however, that fee simple ownership does not relieve the property owner of any responsibility for an unpaid pre-treaty hosing loan. ***
*** If you have an Entitlement and the Village does not offer you a fee simple grant, you can request one. *** The Village is required to consider the request as soon as practicable, and cannot unreasonably refuse the request. *** It may, however, refuse the request for a valid reason, including an unpaid debt by the entitlement holder. If a request is refused, the reasons must be provided to the Entitlement holder. *** If the Village does not respond to a request, or refuses a request, the Entitlement holder can request a review of under the Nisga’a Administrative Decisions Review Act . ***
There are also many lots in each Village that do not have an Entitlement registered on them. *** If the Village Government wishes to, it can grant the fee simple ownership of these lots to Nisga’a citizens, *** and it can charge whatever fee it wishes to for the lot. *** The same conditions apply: *** The initial grant can only be made to a Nisga’a citizen *** The lot must not be more than .2 ha *** And the principal use allowed by a zoning law must be residential. ***
So if this legislation were to be enacted, and you received fee simple interest in a lot in a Nisga’a Village, what could you do with it? *** The short answer is that you could do just about anything with it that any other citizen of British Columbia could do with their home or property. *** You could use it as security for a mortgage, but never forget that if you don’t pay the mortgage, you will lose the land. *** You could transfer it, or leave it in your will to anyone, whether or not they are a Nisga’a citizen. *** You could sell it to anyone, or you can buy someone else’s, without needing to involve the Village Government or NLG in the transaction. You would, however, be subject to the Village laws with respect to your land. And this is essentially the same way that everyone else in BC owns land – they are free to use it as they see fit within the constraints of local bylaws, they are free to buy, sell, transfer or bequeath land in the way that works for them and their family, and they are free to use it as security for a mortgage if they choose. ***
So what comes next in this process? *** There are a number of other legislative changes that need to be made before this legislation could be enacted. Legal Counsel will be working on these over the next few months and will bring them forward as they are ready. *** NLG also needs to provide support and assistance to Village Governments as they develop the zoning laws that they need to regulate land use and development on their residential lands. *** There are technical and administrative changes that need to be made to the Nisga’a Land Title system so that it works for new fee simple interests. *** WSN intends to consider this legislation further at it’s October, sitting. If WSN adopts the legislation, we will begin an information process targeted to Nisga’a citizens who may wish to use the new legislation, Village Government staff, who will be required to be familiar with the necessary land title processes, and legal and financial professionals who work in the real estate and financial fields. ***
*** It is the hope of WSN, in bringing forward this legislation, that it will support the prosperity of Nisga’a Citizens by giving them the rights, responsibilities and opportunities of land ownership and home ownership. You can also find more information, along with a copy of the draft legislation, on the NNKN website. For more information, please contact Eric Grandison, Communications Coordinator for Nisga’a Lisims Government. ***
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