First Nations seek change to land leasing law

A handful of Yukon First Nations want to lease out some of their land. It's not a new idea, but they are proposing a new approach.

A handful of Yukon First Nations want to lease out some of their land.

It’s not a new idea, but they are proposing a new approach.

Before offering any leases, the aboriginal governments want to register their lots with the territory’s Land Titles Office.

Their land claims allow them to do that, but they have to give up any aboriginal rights and title to the land first to render it fee simple, like all other privately-owned land.

But First Nations don’t want to give up rights, like their access for traditional fishing and hunting.

“If we register a piece of land with YTG right now, we lose aboriginal rights and title,” said Nelson Letine, director of finance, infrastructure and administration with the Carcross/Tagish First Nation. “People have fought long and hard to get aboriginal rights and title so why would we relinquish it to buy housing within their system? From my understanding with YTG, it’s just a small piece of legislation that has to be amended.”

But according to the territory’s Department of Justice, which runs the lands registry, the change is far from small or simple.

“It’s really complicated,” said Lesley McCullough, acting assistant deputy minister of legal, court and regulatory services. “From our perspective, it’s challenging legal issues that we want to be confident about before we come to any final conclusion.”

The main problem is that what the First Nations are asking for is a new type of land distinction that is not fee simple, but the territory’s registry is meant to deal with fee-simple land only, said McCullough.

And, according to the registry’s research, this is the first time this idea has been brought up anywhere in Canada, she added.

That’s because First Nations don’t have to register their land with the territory before leasing it. It’s not a legal obligation, she said.

In fact, there have already been a handful of leasing arrangements made in the territory by First Nation governments.

Those arrangements have been for the First Nations’ own citizens, but in B.C., for example, First Nations have leased out their land to non-citizens without registering the lots with the province first. In some cases, the First Nations created their own registry, which collaborates with the province’s.

Yukon First Nations have already done that, too.

The Carcross/Tagish First Nation already has its own registry, said Bill Barrett, director of heritage, lands and natural resources.

“We have our own system and it has worked a few times but in the last few years the banks are shying away,” he said. “If we can register in LTO (Land Titles Office), without fear of losing aboriginal rights and title, then the banks would honour our leases and then our members could get mortgages.”

Obtaining financing for leased land is tough enough, but with young governments and “untested” land registries, banks won’t come near it, said Barrett.

Also, why waste money in building a system that is essentially a replica of what already exists in the territory? he added.

The Carcross/Tagish First Nation has the land and legislation to start leasing 32 lots just past the Carcross cutoff on the South Klondike Highway.

The First Nation has big plans, not only to lease the land but to build housing on the properties for lease. It’s a compelling and competitive business venture for the Tlingit group.

The country-residential lots are close to Whitehorse and are no smaller than one hectare, or 2.2 acres, dwarfing the 88 single-family lots of 500 to 700 square metres expected to go on the market in Whitehorse’s Whistle Bend subdivision this fall.

“We have a huge stack of applicants already,” added Letine. “It’s about 10 inches high on the table.”

The price is the real selling point, he added.

Assessments done three years ago estimated an initial cost of $60,000 for the leased lots, with options to roll annual payments into the up-front cost or to pay a percentage based on the number of years of the lease, he said.

Carcross/Tagish is considering leases no longer than 40 years, “15 years longer than the longest mortgage you can get,” said Letine.

Those leases would also include certain stipulations and regulations to ensure the lots stay well-groomed and maintained.

The Carcross/Tagish aren’t the only ones with competitive options.

The Kwanlin Dun First Nation started this whole ball rolling with the Lands Title Office, said McCullough.

A year ago, the Whitehorse-based First Nation announced plans to put as many as 276 lots on the market with 35-year leases. Those lots included some individual infill lots in Porter Creek and entire new subdivisions adjacent to McIntyre Village and across the highway from the Kopper King.

The Ta’an Kwach’an Council also has land subdivided and ready to go once it is able to pass its own lands act.

The Land Titles Office has also met with the Teslin Tlingit Council about this, said McCullough.

“YG just has to amend their legislation to make sure the aboriginal rights and title is not lost,” said Barrett, adding that Kwanlin Dun has even offered a draft amendment to the territory. “It’s a simple amendment and it would solve the housing crisis and everyone’s needs at this point.”

Contact Roxanne Stasyszyn at

roxannes@yukon-news.com

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