Nisgaa Individual Landholding Project Directorate of Lands and - - PDF document

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Nisga’a Individual Landholding Project

Directorate of Lands and Resources Nisga’a Lisims Government

June 2009

Good Evening: Our job this evening is to explain the Nisga’a Individual Landholding Project, and particularly the proposed Nisga’a Landholding Transition Act. We will do my best, and I hope that when we am finished you will have a good understanding of the intent of the landholding project, and how the proposed new Nisga’a legislation might work for you.

Project History

2006

WSN Economic Roundtable

2007

Discussion Papers Community Discussions

2008

Report to Special Assembly

2009

Draft Legislation Community Discussions

We should begin with an overview of the history of the project. As you can see, it has been going on for some time. You may have had some involvement in the discussions about it before now. Here is a summary of the project so far:

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WSN Economic Roundtable (2006)

Nisga’a prosperity Nisga’a self‐reliance

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 Nisga’a Nation 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, the Registrar of Land Titles was requested to put together a discussion paper related to the challenges that had been

• bserved in the Nisga’a Land Title Office that were related to the way in

which Nisga’a citizens held their residential properties.

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Discussion Paper (2007)

Hard to mortgage Too complex Village Government owns all land Hard to lease or rent an Entitlement

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

• bjectives.

The issues that were raised in the paper were all related to:

• Giving lending institutions the security they need in order to be willing to enter into

mortgages on Nisga’a Lands,

• Allowing Nisga’a citizens to benefit from the equity in their homes, and
• Supporting Nisga’a entrepreneurs in developing a strong local economy.

Specific problems that were highlighted had to do with

• inability to enter into a mortgage
• complexity of the system
• Village Governments role as land owner
• problems with 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. The Nisga’a Nation is unique in its ability to make its own decisions about

its land and resources.

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Community Discussions (2007)

• Ownership?
• Mortgages?
• Risk?
• Help with complexity?
• Renting and leasing?

The discussion paper eventually brought about the community discussions that were held in 2007. We came to each Village and each Urban local. 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?

• What should the rules be about renting and leasing?

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Community Discussions 2007

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 wealth of information.

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Report to Executive on Community Discussions (2007)

Support for unrestricted ownership of land Concern about loss of land

So 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 needed to – including a non-Nisga’a spouse or parent. 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.

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Executive Decision (2007)

Legislation that would create the possibility of

unrestricted fee simple ownership of residential lots in Nisga’a villages

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.

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Draft Legislation

Fee simple ownership Village jurisdiction Voluntary

Once the Executive had given direction, legal counsel (Marcus Bartley) 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. It need to meet some general criteria:

• It 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 be able to do so. The legislation, entitled the Nisga’a Landholding Transition Act was introduced at WSN in March of this year.

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Nisga’a Landholding Transition Act

What does it mean? How would it work? What are the benefits and risks?

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. In order to know if it meets your needs, you need to really understand it. So here is a closer look at the Nisga’a Landholding Transition Act.

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Intent of the Legislation

Opportunity for Nisga’a citizens Security of the land base Respect for Nisga’a citizens’ ability to be

responsible landowners Create an opportunity for fee simple ownership of residential lands in Nisga’a villages

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, just like everyone else in British Columbia. 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?

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What Lands?

Area (ha) Nisga’a Lands 200,000 Village Lands 4300 Villages 200 Residential Lands 100 The Nisga’a Landholding Transition Act will apply to approximately 1/2000 or .05% of Nisga’a Lands.

This legislation does not apply to land outside of Nisga’a Villages. Lands

• utside the villages is owned by the Nisga’a Nation, and the rules related to

how and if it can dispose of land 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 total 1992 sq km (** sq miles) or 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.

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What land?

Nisga’a Lands Village Lands Villages

Here is an illustration of the amount of Nisga'a Land we are talking about: Nisga’a Land is shown here as green.There are about 2000 sq km Village Lands (all the lands granted to the villages by the Nisga’a Nation at the time

• f 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, or 100 ha. We understand that Village Governments have expansion plans, and that this legislation could apply to new subdivisions, but no matter how ambitious the village’s building program may be, this is a small amount of land. It is important to note that none of the village governments have passed laws with respect to zoning land for residential purposes. Villages do have plans that have been adopted, but have not yet created village laws. This legislation requires that land be zoned residentially before it can be granted to a Nisga’a citizen in fee simple. If the villages create residential zones for the lands currently used for residential purposes, the total amount will be approximately 100 ha. 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.

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Protection of the Land Base

Consistent with the Constitution and Final

Agreement

Always Nisga’a Land, no matter who owns it. Village jurisdiction

It is good to start with the most challenging part first: What safeguards are there in the legislation to protect the land base that you worked so hard to regain? Most importantly, the Nisga’a Landholding Transition Act is consistent with both the Nisga’a Constitution and the Nisga’a Final Agreement. 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.

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For Whom?

Initial grant to Nisga’a citizen only Nisga’a citizen could bequeath, sell, rent or lease

to anyone

Can be used as security for a mortgage.

The legislation provides an opportunity for a Nisga’a Village to offer a grant

• f 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, he or she can transfer it freely. This unrestricted ownership permits a Nisga’a citizen to transfer, sell, or bequeath their home to anyone, Nisga’a or non-Nisga’a. Houses could also legally be rented or leased by the fee simple owner. 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.

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How does it work?

Lots with an Entitlement Lots without an Entitlement

The legislation addresses two different situations:

• 1. Residential lots that currently are subject to an entitlement

(NVE or NNE)

• 2. Residential lots that do not have an entitlement registered

against them

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Lots with an Entitlement – Offer by Village

Nisga’a Village may, for no charge, offer fee

simple ownership to current Entitlement holders if:

No mortgage .2 ha or less Residential zoning

Entitlement holder may accept or decline the

• ffer

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 residential lot in every village that has an entitlement and someone occupies. (.2 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

• f 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.

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Lots with an Entitlement – Request by Entitlement Holder

Entitlement holder may request a grant of fee

simple interest

Village must consider the request and cannot

unreasonably refuse it

If refused, reasons must be provided Decision to refuse a request is reviewable under

the Administrative Decisions Review Act

If you have an Entitlement and the Village does not offer you a fee simple grant, you could 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.

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Lots with No Entitlement

Village can transfer fee simple ownership of

residential lots that do not have an Entitlement

Village can charge money Can only be transferred to Nisga’a citizens

Parcel size is .2 ha or less Zoned for residential use

There are also many lots in each Village that do not have Nisga’a Village Entitlements or Nisga’a Nation Entitlements registered on them. If the Village Government wished to, it could transfer the fee simple

• wnership of these lots to Nisga’a citizens, and it could charge whatever fee

it wishes to for the lot. The same conditions would apply: The lot must not be more than .2 ha (1/2 acre) the principal use allowed by a zoning law must be residential

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When I own a lot, what can I do with it?

You can use it for any purpose allowed by the

Village Government zoning law

You can use it as security for a mortgage from a

bank or other financial institution

You can transfer it, or leave it in your will to

anyone, whether or not they are a Nisga’a citizen

You can sell it, or buy someone else’s, without

having to involve the Village Government or Nisga’a Lisims Government in the transaction

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 would 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 could 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 British Columbia 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 suits them, and they are free to use it as security for a mortgage if they choose.

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What Comes Next?

Consequential amendments to other legislation Zoning laws adopted by Village Governments Revision of Land Title technical and administrative

systems

WSN consideration in October Continued education and support for Nisga’a

citizens, Village Governments, financial institutions, etc.

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 embark on an information process targeted to Nisga’a citizens who may wish to use it, 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.

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Nisga’a Landholding Transition Act

Help for Nisga’a Citizens as they work towards prosperity

Rights Responsibility Opportunity

So that is an introduction to the Nisga’a Landholding Transition Act and what it will mean for Nisga’a citizens. It was the hope of WSN, in bringing forward this legislation, that it would support the prosperity of Nisga’a Citizens by giving them the rights, responsibilities and opportunities of land ownership and home ownership. We have been asked to explain the legislation to you, and I hope we have done a good job. There are handouts for you to take away – copies of the legislation and a fact sheet. You can also find more information on NNKN and we encourage you to take a look at the background material we have posted there. You can find it in the Land and Resources Section under NLG. We are going to take a break now, but after we return in (**minutes) we will do our best to answer your questions about the Nisga’a Landholding Transition Act. *** (Bless the food)

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Thank you

Nisga’a Landholding Transition Act

Please take the time to learn about the proposed Nisga’a Landholding Transition

• Act. And when you have thought about it, please inform your elected

representatives of your views so that they can consider this legislation in October with as much knowledge as possible. If you need further technical information, please contact: Diane Cragg diane.cragg@nisgaa.net Collier Azak collier.azak@nisgaa.net Dorothy Elliott land.title@nisgaa.net Thank you!