Certificates of Possession and First Nations Housing : A Case Study of the Six Nations Housing Program

Canadian Journal of Law and Society

Volumn 20, Issue 2, 2005, Pages 183-205

  Alcantara, Christopher ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34247654049     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1353/jls.2006.0019     Document Type: Article

References (126)

1. Department of Indian Affairs and Northern Development, How do Aboriginal and non-Aboriginal living conditions compare? (Ottawa: DIAND 2001), online: http://www.ainc-inac.gc.ca.
2. Department of Indian Affairs and Northern Development, Housing & Infrastructure Assets Summary Report (Ottawa: DIAND 2002)
3. Correspondence with Stephane Godin, DIAND Statistical Officer, Data Operation Section, QC (25 October 2002).
4. Interview of Rhonda Sullivan, Land Administrator at Cowichan Tribes, BC (16 April 2002).
5. Interview of David General, Six Nations Band Councilor, ON (4 June 2002).
6. Department of Indian Affairs and Northern Development, First Nations Housing (Ottawa: DIAND 2002), online: http://www.ainc-inac.gc.ca.
7. Sullivan interview, First Nations Housing 3
8. Interview of Shelda Johnson, Six Nations Housing Manager, ON (5 June 2002)
9. Interview of Bobbi Watts, Westbank First Nation Housing Administrative Officer, BC. (18 April 2002)
10. Interview of Jeneen Roberts, Cowichan Tribes Housing Manager, BC (16 April 2002).
11. Interview of Philip A. Monture, Director of Six Nations Land Claims Research Office, ON (29 May 2002).
12. Interview of Winston Day Chief Jr., Blood Tribe Director of Housing, AB (16 October 2002)
13. Interview of Darrel Crow Shoe, Piikani First Nation Director of Housing, AB (16 October 2002).
14. Tom Flanagan and Christopher Alcantara, “Individual Property Rights on Canadian Indian Reserves” (2004) 29 Queens Law Journal 489
15. for a description of the historical evolution of individual property rights on Canadian Indian reserves, see Christopher Alcantara, “Individual Property Rights on Canadian Indian Reserves: The Historical Emergence and Jurisprudence of Certificates of Possession” (2003–2004) 23:2 Canadian Journal of Native Studies 391.
16. For a summary of the case law involving CPs, see Tom Flanagan and Christopher Alcantara, “Individual Property Rights on Canadian Indian Reserves: A Review of the Jurisprudence” (2005) 42:4 Alb. L. Rev 1026
17. for an in-depth look at customary rights, see Tom Flanagan and Christopher Alcantara, “Customary Land Rights on Canadian Indian Reserves” in Terry Anderson, Bruce Benson and Tom Flanagan, eds., Self Determination: The Other Path for Native Americans (San Francisco: Stanford University Press, 2006) [forthcoming].
18. A copy of the consent form and questionnaire can be requested from the author, or found in Christopher Alcantara, Certificates of Possession: A Solution to the Aboriginal Housing Crisis on Canadian Indian Reserves (M.A. Thesis, University of Calgary 2002) [unpublished] at 134–141.
19. James I. Reynolds, Acting for the “Purchaser” in a Conveyance of Reserve Lands (Vancouver: The Continuing Legal Education Society of British Columbia, 2002), online: http://www.cle.bc.ca at 1.
20. Section 2 of the Indian Act R.S.C. 1985, c. 1–5 defines a reserve as “a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band.”
21. See also Department of Indian Affairs and Northern Development, Directive 02–01 in Land Management Manual Volume 1 (Ottawa: Department of Indian Affairs and Northern Development, 1995) at 1
22. Eel Ground Band v. Augustine, [2004] N.B.J. No. 161 (New Brunswick Queen's Bench).
23. Indian Act, R.S.C. 1985, c. 1–5, s. 20 (1–2). Section 20 (1) reads: “No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.” Section 20 (2) reads: “The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein.”
24. Pierre H. Cadieux, Individual Land Holdings Systems under the Indian Act (Ottawa: Department of Indian Affairs and Northern Development, 1989) at 3
25. Interview of Brenda Payne, DIAND Acting Deputy Registrar, QC (15 July 2002).
26. DIAND Acting Deputy Registrar.
27. Also see interview of Michel Brascoupe, Former Manager of Policy Unit for the Department of Indian Affairs and Northern Development, QC (15 July 2002).
28. See the cases of Sandy v. Sandy [1978] 100 D.L.R. (3d) 363
29. Darbyshire-Joseph v. Darbyshire-Joseph, [1998] B.C.J. No. 2765
30. Derrickson v. Derrickson, [1986] 2 C.N.L.R. 45 (S.C.C)
31. Paul v. Paul, [1986] 2 C.N.L.R. 74 (S.C.C)
32. also see Christopher Alcantara, “Indian Women and the Division of Matrimonial Real Property on Canadian Indian Reserves” [unpublished].
33. Carmen Place, An Historical Review of the Reserve Allotment System (Ottawa: Department of Justice, 1981) at 11.
34. Interview of Cindy Smyth, Financial Services Officer, Bank of Montreal on Six Nations, ON (30 June 2002).
35. [2000] F.C.J. No. 470
36. Fed. T.D. at para. 1 & 14.
37. [1994] 3 C.N.L.R. 199.
38. See also Pronovost v. Minister of Indian and Northern Affairs (1986), 1 C.N.L.R. 56
39. Boyer v. Canada (1986), 4 C.N.L.R. 60
40. Batchewana First Nation v. Corbiere [2000, Docket: T-1234–98] online: http://decisions.fct-cf.ca.
41. On the right of CP holders to transfer their CP, see Williams v. Briggs [2001] B.C.S.C. 78
42. Simpson v. Ziprick (1995), 126 D.L.R. (4th) 754
43. Simpson v. Ryan (1996), 106 F.T.R. 158
44. Cooper v. Tsartlip Indian Band [1997], 1 C.N.L.R. 45
45. Batchewana First Nation v. Corbiere, [2000] Docket: T-1234–98, online: http://decisions.fct-cf.ca.
46. The courts have enforced wills involving CPs: Johnson v. Pelkey (1997), 36 B.C.L.R. (3d) 40
47. Dale v. Paul, [2000] AJ No. 751 (Alta. Master) and the right of a CP holder to engage in a lease
48. Mintuck v. Valley River Band No. 63A, [1977] 1 C.N.L.R. 12 (Man.C.A.)
49. Boyer v. Canada, [1986] 4 C.N.L.R. 53
50. Tsartlip Indian Band v. Canada (1999), 181 D.L.R. (4th) 730.
51. Six Nations, Outstanding Financial and Land Issues & Summary of Six Nations Claims (Six Nations, ON, January 2002)
52. interview of Janice Martin, Six Nations Lands/Membership Manager, and Toni Martin, Six Nations CIS Technician, ON (27 May 2002.
53. Six Nations CIS Technician, ON
54. Monture interview, Six Nations CIS Technician, ON 7.
55. Six Nations CIS Technician, ON
56. Monture interview, Six Nations CIS Technician, ON 7
57. Johnson interview, Six Nations CIS Technician, ON 6.
58. Martin and Martin interview, Six Nations CIS Technician, ON 22.
59. Interview of Sherry Martin, Department of Indian Affairs District Office Lands Officer for Department, Brantford, ON (4 June 2004).
60. Martin and Martin interview, Six Nations CIS Technician, ON 22.
61. Interview of Glenda Porter, Six Nations Band Councilor and Chair of the Lands/Membership Committee, ON (17 June 2002).
62. Interview of David General, Six Nations Band Councilor, ON (4 June 2002).
63. Interview of Adam Carney, DIAND Senior Lands Examiner for the East, QC (15 July 2002).
64. Martin and Martin interview, DIAND Senior Lands Examiner for the East 22.
65. Porter interview, DIAND Senior Lands Examiner for the East 28.
66. Martin and Martin interview, DIAND Senior Lands Examiner for the East 22.
67. Reynolds, DIAND Senior Lands Examiner for the East 11 at 1.
68. Martin and Martin interview, DIAND Senior Lands Examiner for the East 22.
69. Johnson interview, DIAND Senior Lands Examiner for the East 6.
70. DIAND Senior Lands Examiner for the East.
71. General interview, DIAND Senior Lands Examiner for the East 29.
72. Johnson interview, DIAND Senior Lands Examiner for the East 6.
73. Housing & Infrastructure Assets Summary Report, DIAND Senior Lands Examiner for the East 2.
74. Johnson interview, DIAND Senior Lands Examiner for the East 6.
75. Johnson interview, DIAND Senior Lands Examiner for the East 6.
76. The one-acre requirement is to ensure that the lot can accommodate a well and a sanitation system since half or quarter-acre lots are insufficient to do so; piped water and sewer systems only apply to the subdivisions. Smaller one-sixth or quarter-acre lots that are typical off-reserve are simply not available on reserve as most of Six Nations is held under CP in large lots. Most members refuse to sell or subdivide their land, preferring to pass the whole lot or subdivide it among their children. Therefore, out of practicality, Housing requires that an individual have at least a one-acre unencumbered lot (Johnson interview, DIAND Senior Lands Examiner for the East 6).
77. Six Nations, Six Nations Housing Program Policies (Six Nations, ON, April 2000).
78. Johnson interview, Six Nations Housing Program Policies 6.
79. Six Nations Housing Program Policies
80. Six Nations Housing Program Policies, Six Nations Housing Program Policies 47.
81. Johnson interview, Six Nations Housing Program Policies 6
82. Monture interview, Six Nations Housing Program Policies 7.
83. Johnson interview, Six Nations Housing Program Policies 6
84. Interview of Elaine Lickers, Community Manager at the Royal Bank at Six Nations, ON (26 June 2002).
85. Community Manager at the Royal Bank at Six Nations., Lickers interview.
86. Johnson interview and Lickers interview, Community Manager at the Royal Bank at Six Nations 51.
87. Lickers interview, Community Manager at the Royal Bank at Six Nations 51.
88. Smyth interview, Community Manager at the Royal Bank at Six Nations 18.
89. Community Manager at the Royal Bank at Six Nations.
90. S. Martin interview, Community Manager at the Royal Bank at Six Nations 26.
91. Martin and Martin interview, Community Manager at the Royal Bank at Six Nations 22.
92. S. Martin interview, Community Manager at the Royal Bank at Six Nations 26.
93. Martin and Martin interview, Community Manager at the Royal Bank at Six Nations 22.
94. Carney interview, Community Manager at the Royal Bank at Six Nations 30.
95. Community Manager at the Royal Bank at Six Nations
96. S. Martin interview, Community Manager at the Royal Bank at Six Nations 26.
97. Johnson interview, Community Manager at the Royal Bank at Six Nations 6.
98. Smyth interview, Community Manager at the Royal Bank at Six Nations 18.
99. Lickers interview, Community Manager at the Royal Bank at Six Nations 51.
100. Smyth interview, Community Manager at the Royal Bank at Six Nations 18.
101. Community Manager at the Royal Bank at Six Nations
102. Lickers interview, Community Manager at the Royal Bank at Six Nations 51.
103. Reynolds, Community Manager at the Royal Bank at Six Nations 11 at 3.
104. Brascoupe interview, Community Manager at the Royal Bank at Six Nations 15.
105. Flanagan and Alcantara (2004), Community Manager at the Royal Bank at Six Nations 9
106. Thomas Isaac, “First Nations Land Management Act and Third Party Interests” (2005) 42–4 Alta. L. Rev. 1047.
107. Interview of Lynn Vanderburg, Westbank First Nation Land Manager, BC (18 April 2002).
108. Interview of Alan Ray, Sandy Lake First Nation Treaty and Lands Manager, ON (10 June 2002).
109. Alcantara and Flanagan (2005), Sandy Lake First Nation Treaty and Lands Manager 9.
110. Interview of Larry George, Cowichan Tribes Land and Governance Manager, BC (17 April 2002).
111. Day Chief Jr. interview, Cowichan Tribes Land and Governance Manager 8.
112. Watts interview, Cowichan Tribes Land and Governance Manager 6.
113. Canadian Broadcasting Corporation, “Rent arrears prompt First Nation to take own members to court” (13 July 2005), online: CBC
114. Johnson interview, “Rent arrears prompt First Nation to take own members to court” 6
115. Lickers interview, “Rent arrears prompt First Nation to take own members to court” 51
116. Smyth interview, “Rent arrears prompt First Nation to take own members to court” 18.
117. CBC, “Rent arrears prompt First Nation to take own members to court” 77.
118. Interview of Kevin MacLeod, Lac La Ronge Indian Band, SK (15 July 2005).
119. Lickers interview, Lac La Ronge Indian Band, 51.
120. Vanderburg interview, Lac La Ronge Indian Band, 71.
121. Interview of Hugh Ryan, Manager of DIAND Policy Infrastructure and Housing Community Development, QC (16 July 2002).
122. George interview, Manager of DIAND Policy Infrastructure and Housing Community Development 74
123. Roberts interview Manager of DIAND Policy Infrastructure and Housing Community Development 6.
124. Smyth interview, Manager of DIAND Policy Infrastructure and Housing Community Development 18
125. General interview, Manager of DIAND Policy Infrastructure and Housing Community Development 29.
126. Lickers interview, Manager of DIAND Policy Infrastructure and Housing Community Development 51.