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Osgoode Hall Law Journal

Article Title

Land Regime Choice in Close-Knit Communities: The Case of the First Nations Land Management Act

Abstract

Land interests on Canadian First Nations reserves have long been governed by the rigid and paternalistic provisions of the federal Indian Act, which require the permission of the federal Minister of Indigenous Affairs for even relatively minor land transactions. Yet an increasing number of First Nations have taken advantage of the 1999 First Nations Land Management Act (FNLMA), which allows First Nations to adopt a custom land code that replaces most of the reserve land provisions of the Indian Act in their community. This paper seeks to examine how First Nation communities have chosen to exercise their powers under this Act to define and regulate land interests on reserve. Working from a database of 33 FNLMA land codes, the authors focus on three discrete issues on which the codes differ: 1) whether to require a vote of the community as a whole for the grant of a lease in community-held lands to a non-member; 2) whether to require the approval of the band council for the transfer of a leasehold interest to a non-member; and 3) whether to require the approval of the band council for the inter vivos transfer of a member-held interest to another member. Each of these issues relates to the contentious question of how freely alienable land interests in Indigenous communities should be—a matter that occupies a kind of ideological fault line involving considerations of economic efficiency and individual autonomy, on the one hand, and community cohesion and traditional culture, on the other. The authors make a number of observations relating to the links between the characteristics of communities and their choice of land regime. First Nations Communities with substantial non-First-Nations-Indigenous populations living on reserve were more likely to adopt rules allowing free alienation of leasehold interests, as well as free alienation of member interests among members. In addition, First Nations that adopted liberal rules for the transfer of interests among members experienced larger increases in the proportion of their members living off-reserve in the years following the adoption of their code. This may indicate that liberal transfer rules among members help to facilitate exit from the community.