Insights from the First Nations Housing and Infrastructure Forum East

A few weeks ago I had the chance to attend the 7th Annual First Nations Housing and Infrastructure Forum East with the Canadian Institute in Toronto on behalf of macushlaw where I co-presented with my articling supervisor James Struthers on a variety of topics including how  to streamline the initial housing application process to free up space for the important work of attending to the unique needs of tenants.

We also briefly discussed the parameters of opening up section 18(2) of the Indian Act for the purposes of implementing social housing on reserve and what that could look like in terms of optimization and risk. Utilizing 18(2) for social housing would be separate from expropriation in that it would only be for the purposes of housing First Nation members on reserve, especially those who are in dire housing emergencies and want to return home but have nowhere to live due to a severe shortage of housing. 18(2) could bypass the need to designate, whereby the band would no longer need to go through a lengthy ratification process and only have to make a decision at Chief and Council level during a regular meeting. Opening up 18(2) to social housing might also provide funders with more incentive to invest their dollars into housing projects on reserve. We are currently working on a research paper at macushlaw to identify the risks and benefits that could come from a policy change under 18(2) so keep an eye out for that in the near future.

During my time at the conference, I was grateful to be able to participate as an attendee and learn from Chief Laurie Carr from Hiawatha First Nation, Chief Mary Duckworth from Caldwell First Nation and Chief Erica Beaudin from Cowessess First Nation who all spoke to the strengths and hurdles of housing in their respective nations.

I learned that across Canada negotiations on the Additions to Reserve Policy (ATR) process for First Nations pose quite a few roadblocks. The government must negotiate with First Nation’s leaders in good faith so that the bands can access additional lands for the purposes of social housing outside of reserve. Many First Nations are relying on ATR’s to open up space for social housing yet siloed government agencies are not communicating with each other or working together to support First Nations in their ATR requests.

When the reserve system first began, First Nations were forced onto small parcels of land designated as reserve land which were in areas that were often on the borders of towns hidden from sight or adjacent to industrial development where lingering contaminants pose health challenges – its own form of environmental racism.

In the past a person living on reserve needed to request a pass by an Indian Agent if they wanted to leave the reserve. Gone are the days of the Indian Agent, however some might argue that Indian Agents are still prevalent today under the guise of a different title within government. With Indigenous peoples being the fastest growing demographic in Canada we need room to raise our families if we are wanting to stay on reserve and in our community which is where ATR comes in.

As it stands now, the process to effectively obtain an ATR takes years in the making. As Laurie Carr noted, Hiawatha First Nation had a stipulation for “fast tracking” the ATR process in their treaty promises but it turned out to be a flimsy covenant showing that there’s also a need for terminology around fast tracking to be defined.

The slow start to ATR processes is unacceptable considering that many First Nations are living in overcrowded homes poorly designed and built by the government not able to withstand the test of time. Most government-built homes are not suitable for inhabitability even soon after they are built.

According to the Assembly of First Nations, in 2022 more than 1300 applications for ATR’s were awaiting approval. This egregious backlog is blatant evidence of the unmet needs that exist on reserve. Has the government forgotten that it has a fiduciary duty to fill when it comes to First Nations since the imposition of the Royal Proclamation?

It’s important that First Nations get the right of first refusal to ATR land over municipalities, crown corporations and the outside interests of third parties when considering land allocation but the priority of First Nations land selection is not considered in the ATR process. ATR lands can and should be considered as a demand for land back. With the support of UNDRIP the government must keep First Nation’s rights at the forefront and allow for a speedier ATR process to occur in order to advance reconciliation.

Budget 2023 promises to provide 30 million towards enhancing ATR services but where those dollars will be spent – in house or invested into First Nation communities to lead the charge – is uncertain. Although ATR’s do not open the possibility for a different type of land ownership for First Nations, as ATR lands are still crown land, they are still a way of asserting First Nation rights.

To leave things on a hopeful note, on the last day of the conference, I was surprised to realize that First Nations across the country have the ability to negotiate borrowed investments from the big banks. Key note speaker, Tracee Smith President, CEO and founder of the Indigenous owned Keewaywin Capital Inc., gave expert insight into the irony that – although many of the larger banks in Canada are collectively holding onto billions of dollars in funding that come directly from First Nation trusts – they are still not so keen on returning the favor. Instead, the banks are making it challenging for First Nations to borrow money back especially when it is for social housing related purposes as there is often little return on investment. This needs to change and Keewaywin Capital is doing the good work of leading the way forward in this area.

These are challenging and changing times, but this is nothing new for First Nations. The above-mentioned issues are worth putting in the effort to bring more robust systems of social housing onto reserve independent of government control led by First Nations themselves. Here at macushlaw we are in the position to help find a way forward together by lending our expertise to advocating and negotiating new and innovative strategies for housing on reserve. Strategies that work towards lasting solutions to breaking down existing colonial barriers when it comes to the right to housing on reserve.

Written by Katłı̨̀ą Lafferty.