Saskatchewan First Nation adopts new law that detours Indian Act
Increased resource development could be tradeoff for increased autonomy
Tim Querengesser is senior editor with Alberta Venture. Email Tim
by Tim Querengesser
The Kawacatoose’s community hall burnt down in 2012. But even though the Kawacatoose First Nation has money to build another one, the Indian Act dictates that aboriginal nations must ask permission to spend money on community halls, schools, houses, or anything, really. And so, nearly two years later, a new hall remains a dream.
Rather than accept this, however, last week the Kawacatoose Cree ditched the Indian Act, signing a largely ignored, eight-year-old law called the First Nations Oil and Gas and Moneys Management Act. But while this bold move will give the nation power to spend its money on its three reserves, located about 120 kilometres north of Regina, it also means Kawacatoose has become a guinea pig. The act the nation has signed is designed to give aboriginal governments autonomy, but also to open up reserve lands to bigger resource projects.
Is the gamble worth it?
Kawacatoose, clearly, feels it is. “We have the ability now to invest our dollars … to make a future for our people,” Chief Darin Poorman told the Financial Post, after signing the Moneys Act. Poorman leads a nation of 3,000, with 1,100 on-reserve members in southeastern Saskatchewan. He signed the Act on March 21, following six years of consultation. He also followed the wishes of his community: a June 2013 plebiscite saw more than 1,000 Kawacatoose members vote in favour of signing the Act and about 200 vote against, according to a report by First Perspective.
Still, for all its promise to free First Nations from the financial controls in the Indian Act, the Moneys Act has been apparently ignored by aboriginal Canada (federal officials would confirm only that seven other First Nations are investigating adopting the law). One clue why could be the second aim of the Moneys Act, which is to address what Ottawa considers a regulatory gap for aboriginal reserves and resource development. Indeed, as a 2005 report on the Act by Calgary-based law firm Rae and Company noted, the Indian Act “fails to provide the necessary tools to allow First Nations to undertake large-scale commercial and industrial developments on reserve.” The new Act was designed to fill this gap.
As Kawacatoose has found, trading development — and the potential environmental and cultural woes that come with it — for autonomy could be better than the status quo. That status quo, after all, has been fighting for fairness, along with other Saskatchewan First Nations. Several have risen up against a perceived lack of consultation, land annexation and lack of wealth sharing from potash and oil reserves all around them. In 2012, George Gordon First Nation, located close to the Kawacatoose nation, launched a $10-billion lawsuit against Saskatchewan and Ottawa over what it called being “cheated out” of wealth generated from the land.
The trade comes in the form of the Moneys Act. Created by Ottawa in 2006, the Act offers First Nation governments an escape from the Indian Act. That 1876 law still controls the more than 600 of them that have not signed comprehensive land claims, despite their many efforts to do so. Under the Indian Act, a First Nation must ask the Ministry of Aboriginal and Northern Development for permission to spend its own money, generated from the wealth on its reserve lands. If it wants to allow oil and gas companies access to these reserve lands or to form an impact-benefit or joint-venture agreement with them in exchange for this access, well, it has to ask Ottawa for permission. The Moneys Act allows a signatory First Nation to make those decisions on its own.
By adopting the new law, Kawacatoose First Nation can “get away from all of those Indian Act provisions that hamper and work against their economic development opportunities,” Bernard Valcourt, minister of Aboriginal and Northern Development, told the Financial Post. In an interview with CBC, he added: “They are pioneers in Canada. I can’t wait for the day where all First Nations in Canada will be in that situation.”
Kawacatoose’s reserve lands are already generating big revenues, through rents to farmers. But what looms far larger is the upcoming Jansen Potash project, a BHB Billiton development that will eventually see the company invest billions and produce an estimated 10-million tonnes of potash per year. By signing the Act, Kawacatoose can potentially access royalties from this development and spend them as it sees fit. In future, money currently held off-limits by Canada in trust accounts will be transferred to a Treaty Land Entitlement Trust that the community will be able to use for investments, either on infrastructure on the reserve itself or on business ventures anywhere in Saskatchewan. Valcourt declined questions as to the exact amount of that transfer.
What this means for Kawacatoose is hope. “This means financial stability for our children and it’s set up in a way so that it can grow,” Kawacatoose citizen Wesley Machiskinic told First Pespective. “Our housing is aging and pretty weak; our infrastructure is pretty poor.” In an interview with the CBC, Poorman added revenues that the Act will allow Kawacatoose to control will be spent on community services, like housing.
The First Nation is working with Native American Resource Partners, a Calgary firm that provides capital for resource projects on aboriginal land in Alberta and Montana, to develop its own economic opportunities after signing the Act.
Should First Nation governments in Alberta follow suit? Or should they be wary?