How to transfer your land to Indigenous peoples

As an act of reconciliation, some Ontarians are seeking to transfer ownership of their property to First Nations — but the process is more complicated than you might think
By Chantal Braganza - Published on June 28, 2018
Rice Lake in Ontario
Janice Keil hopes to transfer her land in Northumberland County to the Alderville First Nation, a band of Mississaugas about 30 kilometres away, near Rice Lake.

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Three years ago, after retiring from her job as a high-school teacher, Janice Keil moved from Toronto to Peterborough. She figured the southern Ontario city would be an ideal place to live while working on her dream of buying and ecologically restoring a large plot of land. In 2016, Keil purchased 97.3 acres in Northumberland County with a range of habitats: tall-grass prairie, ravine, open marsh, and ribbons of forest.

The next summer, Keil revised her plan for the land. “I was listening to a lot of speakers on [the CBC’s] Unreserved and their takes on Canada’s 150th anniversary,” she says. “It was a conversion experience. I’m a proud Canadian: I was born here, and I’d always thought my particular way. Looking back at what these voices were saying, I realized I needed to do something differently.” So she decided that as an act of reconciliation, she would transfer the land title to the Alderville First Nation, a band of Mississaugas about 30 kilometres away, near Rice Lake.

Keil estimates that it will take about five years to restore the marsh — but transferring the land could end up taking four times that long.

Lorraine Land, a partner at Olthuis Kleer Townsend LLP and an expert in Aboriginal rights and environmental law, says she only recently starting hearing more public discussion about how individuals can legally transfer land to Indigenous peoples. “I’m seeing this pop up all over the place: individuals speaking about giving land — and, interestingly, church communities doing it, if they have property and are disbanding congregations.” But, she says, the process doesn’t simply involve transferring a deed or title.

“Part of the reason why is that very colonial history, the thing that makes people think about land return in the first place,” says Land. “First Nation governments and band councils don’t have legal authority to own land in their own right. The way reserves work is that land is owned by the federal government.”

Land can be repatriated to First Nation governments in a number of ways. For example, a First Nation can apply for what’s called an “addition to reserve.” “Historically, this has been nearly impossible and is a years-long process,” says Land. “Non-Indigenous neighbours protest like crazy.”

Another option is to establish a trust system in which a designated trustee holds the land in private ownership or a charitable organization is set up to do the same. This involves its own legal and financial implications: a mechanism has to be developed to ensure smooth transitions in ownership over time; local taxes may have to be paid.

“This can be expensive, and it goes against the idea of nation-to-nation relationship,” says Ian Attridge, a conservation consultant, a lawyer, and the lands manager at Kawartha Heritage Conservancy. “Cities are a creature of the province. If you’re subject to paying property taxes to the local municipality, it doesn’t fit well with the longer term of that community and the province and the people interested in giving land.”

Last fall, Keil reached out to Alderville’s band chief, Jim Bob Marsden, to talk about her proposal. In November, she and Attridge, who is a friend, met with Marsden and the council. “We thought, ‘Really?’ We’d never heard of someone doing this before,” says Marsden. Having already established a black oak savanna conservation area within the borders of its reserve lands, the council connected with Keil over land protection. “That’s her biggest thing, to keep the land as it is.” 

The council wasn’t keen on pursuing an addition-to-reserve application. It was wary of the kinds of complications that can be involved, particularly when lands aren’t publicly owned and aren’t immediately adjacent to the reserve. “We bought 200 acres in 1995 for a solar farm, and [the application] is still not done,” says Marsden. Another ongoing application for land purchased across from Rice Lake dates back to the 1980s.  

Among other matters, they discussed who would be responsible for paying the taxes. “Of course the settler who is returning the land should pay those taxes for at least a decade until this piece of land I’m honoured to look after becomes self-sustaining and financially viable,” says Keil. “I have to confess I didn’t think of that, and it was stupid not to.”

One idea that resonated with everyone in the room was that of creating a conservation-based land trust, which would involve registering for charitable status. While Ontario is home to a number of land trusts, the concept of Indigenous-led and owned land trusts is relatively new. The oldest First Nations land trust in Canada — Walpole Island Land Trust, near Sarnia — was registered only a decade ago, in 2008.

“It’s been working on its own unceded territory and also in its wider community, looking at opportunities to work in partnership with others to conserve lands in their traditional territory,” says Attridge, who helped Walpole Island First Nation incorporate the trust. “There is the possibility that other communities could consider that as well.”

However, Attridge calls this approach an interim step. “One drawback is that using the Western legal tradition isn’t reflective of traditional Indigenous laws and governance patterns. While it might be something we can do now, we need to be thinking longer term about how we can try to facilitate the re-emergence of traditional laws and governance patterns for relating to land.”

A formal decision about how to proceed with the land transfer will take more consultation, but Marsden is optimistic about the future. “It may pave the way if there are other lands that do come forward — and hopefully clear an easier path for other people who want to donate their lands back to a First Nation.” 

Keil has already made progress toward her goal of restoring its ecosystems. She’s started replanting tree species that have been in decline in the area —white oak and cedar saplings, hundreds of sweet gale — and excavating to encourage the return of the marsh. She’s also started a project to build an energy-efficient building that could one day be used by Alderville.

“Alderville has the Black Oak Savanna, and they basically have been looking after tall-grass prairie for millennia and been doing grass burns to look after the area,” says Keil.

Shortly after purchasing the land, Keil went through archival records to find original surveys. The earliest, from 1819, suggests that the area was originally made up of marsh and grasslands. “So I want to, for however long the land-return process takes, bring things back as much as possible to how they were pre-contact.”

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