Reconciliation in a Real Property Securities Course – Not Necessarily a Missing Lien!

In 2019 and 2020, I taught a course on real property securities (Sûretés immobilières) at the Université de Moncton. This course traditionally focuses on the creation and enforcement of land securities based on mortgages, mechanic’s liens and registered judgments. Inspired by this blog and from colleagues around the country attempting to include their private law courses (broadly defined) in their reconciliation initiatives, I set out to dedicate about 3 hours (a weekly session) to this topic in my syllabus. My initial knowledge about this was limited to sections 29 and 89 of the Indian Act prohibiting charges, attachment, seizure and execution on property situated on a reserve:

89 (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.

29 Reserve lands are not subject to seizure under legal process.

Indian Act, R.S.C., 1985, c. I-5

At first, I was a bit worried that the general un-applicability of mortgages and other charges on reserve lands would make for a very quiet 3 hours of class. However, the learning journey I embarked on to prepare this class took me much further than I anticipated and now resonates throughout the entire course.

I have found that studying the absence of real securities in reserves has shed a new light on many other aspects of the topic; it has worked as an effective entry point to understand the rationale for and socio-economic effects of real securities in mainstream society as well as a way to talk about the link between living conditions and economic development on reserves and the legal framework under which they operate.

In what follows below, I will share some of the key takeaways I wanted students to learn in this class, four activities I designed for the class, extracts from some of the primary resources I relied upon and some personal reflections on this ongoing journey.

KEY TAKEAWAYS

  • The existence of securities (i.e. pledging one’s rights to property to someone else in order to guarantee the execution of some obligation) is contingent on the regime of private ownership of land;
  • Private ownership and securities derive from the Western philosophical, political and legal approach to land and obligations but are not universal concepts and are not consistent with all existing worldviews;
  • In mainstream society, secured transactions are key to access financing (=credit), which in itself is a crucial factor for economic development;
  • Lack of financing leads to cheap repairs (e.g. to housing infrastructure), which cost more in the long run for marginal and temporary improvements; with financing, it is possible to invest in more efficient and more durable repairs or improvements;
  • The reserve system has been a cornerstone of Canadian colonial policies since the 18th century with devastating consequences on Indigenous communities (forced displacement to barren lands, forced dependency on economic exchanges with or charity from colonial settlements, destitution); it has also entrenched a communal ownership system which, when properly applied, protects communities against alienation of their lands to external creditors, albeit under the paternalist supervision  of the federal government rather than as a self-determination mechanism;
  • The Indian Act’s limitation of real property securities on reserved lands to leasehold interests (or at least the way in which the Indian Act has been applied and misapplied) has played an important role in the perpetuation of poverty and despicable housing conditions on reserves, especially in the absence of robust alternatives to access financing;
  • The limited impact to date of federal initiatives such as the First Nations Land Management Act and ministerial loan guarantees to make financing as available in reserves as in other segments of society;
  • The importance of self-determination in potential reforms of the property regime, possibilities of alienation of land, and alternative ways to obtain financing and socio-economic development on reserves.

FOUR LEARNING ACTIVITIES:

Activity 1: (Reminder of) the diversity of worldviews on property

Assuming that students had been introduced to Indigenous perspectives on property in previous courses (especially in 1L), I wanted to remind them of what they already knew about the difference between Indigenous and settler approaches to property.

I assigned an extract from Leroy Little Bear, “A Concept of Native Title” [1982] 5 BCAJ/ CLAB 9; I chose this source because it was on the syllabus of the Property course they had taken 1 or 2 years prior.

By way of contrast, I assigned extracts from the Book of Genesis (chap 1, verses 26-28), Blackstone’s Commentaries on the Laws of England (Book II, Chap 1) and Locke’s Treaty on civil government (Chap V, para 25-44) to illustrate the Western society approach to property.

The goal was to illustrate the genealogy of Western view on private ownership of law, show how the idea of land securities derive from it but is at odds with traditional Indigenous approaches to land.

Indian ownership of property, and in this case, land, is wholistic. Land is communally owned. Indian property ownership is somewhat akin to a joint tenancy: the members of a tribe have an undivided interest in the land; everybody, as a whole, owns the whole. […] It is as though the original grantor of the land to the Indians put a condition on it … “so long as there are Indians”; “so long as it is not alienated”; “on the condition that it used only by Indians” etc. In other words, the Indians’ concept of title is not equivalent to a fee simple, but is somewhat less than a fee simple. […] If one attempts to trace the Indians’ source of title, one will quickly find the original source is the Creator. The Creator, in granting land, did not give the land to human beings only but gave it to all living beings. This includes plants, sometimes rocks, and all animals. In other words, deer have the same type of estate or interest as any human being.

Leroy Little Bear, “A Concept of Native Title” [1982] 5 BCAJ/ CLAB 9 at 101-103

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

Sir William Blackstone, Commentaries on the Laws of England 1753 (Book II, Chap 1)

Bible, Book of Genesis, 1:26

Activity 2: Instructions to practioners dealing with mortgages on reserve lands

I asked students to read an institutional lender (e.g. a large bank)’s specific instructions to lawyers dealing with mortgages on reserve lands[1] or the “Leasehold mortgages and Lender Protection” section of the Canadian Bar Association’s Mortgage Instructions Toolkit.[2

Earlier in the course, the students had read a set of general instructions they would receive from an institutional lender when asked to register a mortgage. The benefits of looking at practice documents specific for mortgage transactions affecting reserve lands include:

  • conveying the message that checking whether the land affected by the mortgage is located on reserve is part of general due diligence for such transactions (thus making the issue relatable for practice-oriented student minds);
  • signaling that when this is the case, additional or different endeavors are required compared to usual transactions.

The specific instructions will highlight that a mortgage on reserve land can only take the form of a leasehold mortgage. This will in turn trigger two sets of questions and discussions:

First, the “why” questions:

  • What is the legal frameworks for mortgages on reserve lands?
  • Why is it that way? (answers to this question are complex and nuanced; they involve speaking on the one hand about the protection of reserved lands against further physical, economic and philosophical alienation and on the other hand about the history of displacement, broken promises, one-sided application of the Indian Act, paternalism, etc)

Second, the “so what” questions:

  • “what is a leasehold mortgage?”
  • “what can execution of a leasehold mortgage look like for the lender in case of case of default on the loan?”
  • “what is the value of such a security for the lender?”
  • “how does this affect the willingness of creditors to take such a security in exchange for a loan?”

Activity 3: ‘Discovering’ the housing conditions of Indigenous communities on reserve

I introduced students to evidence (statistics, photographs, etc) to make them understand what lack of repairs to homes can mean and look like:

44% of First Nations on reserves live in dwelling in need of major repairs, compared to 6% of the general population.

37% of First Nations on reserves live in overcrowded dwellings, compared to 8,5% of the general population.

Statistics Canada, (2017) “The housing conditions of Aboriginal people in Canada”
Red Sucker Lake First Nation (Manitoba)
Mould in a bedroom shared by several children (Sandy Lake First Nation, Ontario)

In addition to statistics and photographs, I also emphasized the multi-dimensional effects of such situations, including increased risk of fire and mold growth, physical and mental health risks (respiratory illnesses, depression, sleep deprivation, family violence) and socio-economic consequences (poor educational achievement, inability to retain skilled and professional members in the community).

This activity aimed at illustrating the connection between access to financing and living conditions. Living conditions are also a proxy to talk about socio-economic development more generally, thus integrating the residential and commercial uses of land securities.

Activity 4: Imagining solutions

I did not want to leave students with the impression that this state of things was inevitable. I gave an overview of some government programs aimed at addressing the issues, such as the First Nations Land Management Act and government loan guarantees. This included a discussion of the following points:

  • The centrality of the idea self-determination when designing and implementing solutions (with reference to UNDRIP, art 3,4);
  • Pros and cons of abolishing the relevant sections of the Indian Act;
  • Ways to exert self-determination on land management;
  • Alternative forms of land ownership, alienation and management to be agreed upon through modern treaties;
  • Emerging Indigenous-owned-and-managed financial institutions;
  • Accounting for the diversity of situations, perspectives, needs and preferences among Indigenous communities, including their own legal traditions, geography, state of affairs…

Of course, we didn’t leave the classroom with a clear, universal and easy-to-implement solution. Engaging with a wide range of possibities and their inherent complexity was the main goal here.

PERSONAL REFLECTIONS

I recognize that this is a lot more I need to learn to be truly proficient regarding the issues mentioned above, both on the legal and the cultural aspects. The Real Property Securities course was the first course I taught as a full-time faculty member and was my first attempt at integrating the lessons of the TRC in my teaching. It has been a tremendous learning journey.

I realized that studying the absence of real property securities for land on reserves taught us a lot more than expected about real property securities in mainstream society, both with regard to their necessary connection to the idea of private ownership and to their role in socio-economic development.

This illustrates the amazing potential of studying Indigenous issues in “seemingly-unrelated-law-courses”; it serves at the same time to educate all students on the history and contemporary realities of many Indigenous communities, including the role of legal institutions and actors in it, and give human and social meaning to otherwise doctrinal topics, well beyond Indigenous issues themselves.

Dedicating a 3-hour session to this inquiry in my term-long course has not been a parenthesis to take a break from the serious study of mortgages and mechanic’s liens; to the contrary, it has provided a space to analyze the causes and social consequences of these legal institutions and deepen the understanding of their functions in society.

Key resources to learn more on the topic (and eloquent extracts):

Indian Act, RSC 1985, c I-5, ss 2, 18, 20, 28, 29, 89

First Nations Land Management Act, SC 1999, c 24

UNDRIP, s 3, 4

Scott Hitchings, “Real Property Security on First Nations Reserved Lands” (2017) 80 Sask L Rev 125

Scott Higgins, “Real Property Security on Indigenous Lands” (2018) 83 SCLR 317

24. The housing situation in Inuit and First Nations communities has reached a crisis level, especially in the north, where remoteness and extreme weather exacerbate housing problems. Overcrowded housing is endemic. Homes are in need of major repairs, including plumbing and electrical work. These conditions add to the broader troubling water situation in First Nations reserves, in which more than half of the water systems pose a medium or high health risk to their users. The housing crisis has been identified by Inuit representatives as a high priority issue. It is worth noting that the chronic housing shortage has a severe negative effect on a wide variety of economic and social conditions. Overcrowding contributes to higher rates of respiratory illness, depression, sleep deprivation, family violence, poor educational achievement, and an inability to retain skilled and professional members in the community.

26. Overall, investments have not kept pace with the demand for new housing or the need for major renovations to existing units. Government representatives have attributed the lack of adequate funding in a large measure to the difficulties presented by the communal ownership of indigenous lands in obtaining mortgages or financing for housing. In response, the Government has established loan guarantees, for which First Nations can apply, to provide security for on-reserve housing loans. Despite loan guarantee increases in recent years, much more remains to be done to provide secure loans for housing, both on and off reserve, in a way that respects and accommodates for the communally held nature of aboriginal lands.

James Anaya, Report of the Special Rapporteur on the rights of indigenous peoples, The situation of indigenous peoples in Canada, 2014 online: https://www.ohchr.org/documents/issues/ipeoples/sr/a.hrc.27.52.add.2-missioncanada_auv.pdf at para. 1-28

Statistics Canada, “The housing conditions of aboriginal people in Canada” (25 October 2017) Census in Brief, online: https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016021/98-200-x2016021-eng.cfm

Standing Senate Committee on Aboriginal Peoples, Housing on First Nation Reserves: Challenges and Successes (Interim Report) (February 2015), online: https://sencanada.ca/content/sen/committee/412/appa/rep/rep08feb15-e.pdf

Joan Kendall, “Circles of Disadvantage: Aboriginal Poverty and Underdevelopment in Canada” (2001) 31:1 Am Rev Canadian Studies 43 at 51 (highlighting the following additional barriers to obtain financing: lack of education and business experience, the difficulty of coming up with initial down payments and the remoteness of the communities)

Was the Indian Act the cause of the First Nations’ poverty in Canada? Many would like to say yes, but the answer is no. It was the misuse of the Act by Indian Affairs bureaucrats to oppress First Nations peoples that caused the poverty. If competent and non-biased people had administered it from day one, I firmly believe that the results today would be far different.

The Indian Act was not designed by bureaucrats to preserve First Nations cultures and see them prosper, but to deliver the final blow. Fittingly, as a measure of poetic justice, it has turned out to be a salvation. The men who sought to destroy our cultures, motivated by their racist perceptions of themselves as products of superior civilizations, would roll over in their graves if they knew the actions they had taken to facilitate the demise of First Nations were the very actions that ultimately saved them. […]

The Act is only an inanimate piece of paper, unable to do anything on itself. Just as for any other law, it is the individuals applying it who give it life. Those responsible for administering the Act chose to give it life by showing a disdainful indifference toward the trust and other legal obligations that its provisions prescribed. Let us note that from its enactment tin 1876 and until very recently, the Ministry decided to use the provisions of the Act in an attempt to destroy the First Nations civilizations through assimilation. That is, I believe, what we call a cultural genocide.

Daniel N Paul, L’Histoire des Premières Nations : Ce n’était pas nous les sauvages, 2020, Mouton Noir Acadie at 316-317 (available in English: First Nations history : we were not the savages : collision between European and native American civilizations, 3rd ed, 2006, Fernwood)

[1] See e.g. for RBC: “Additional Instructions to Lawyer Leasehold Mortgage on Indian Lands” https://www.rbcroyalbank.com/legalforms/nb-residential.html

[2] See https://www.cba.org/Publications-Resources/Practice-Tools/Mortgage-Instructions-Toolkit/Leasehold-Mortgages-and-Lender-Protection

[3] Statistics Canada, “The housing conditions of aboriginal people in Canada” (25 October 2017) Census in Brief, online: https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016021/98-200-x2016021-eng.cfm

[4] There are numerous examples in  Interim Report of the Standing Senate Committee on Aboriginal Peoples, Housing on First Nation Reserves: Challenges and Successes (February 2015), online; https://sencanada.ca/content/sen/committee/412/appa/rep/rep08feb15-e.pdf; additional local examples can be found in news sources.

Author: Adrien Habermacher

Assistant professor in law at Université de Moncton

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