There has been discussion about the potential for a land transfer component in the pending southwest Calgary ring road deal between the Province and the Tsuu T’ina. Concerns have been raised publicly about the status of the new land that the Tsuu T’ina might acquire, and whether or not this land would be integrated into the reserve. In a recent Calgary Journal article, Jean Crowder, MP and Official Opposition Critic for Aboriginal Affairs, questioned whether the new lands included in the agreement would in fact be reserve land.
The map above shows the new lands (magenta) proposed to be added to the reserve (red) in the 2009 deal.
Without knowing the details of the 2013 agreement, we can currently only look at the 2009 deal to see how land ownership and transfers were proposed in regards to this project. The details about ownership and transfer that follow are based on the wording of the 2009 deal (which can be downloaded in full here). For a further look at the 2009 deal, click here.
Reserve Lands vs. Fee-Simple Ownership
Reserves in Canada are not owned by the Nation that occupy them; legally reserves are Crown lands, owned by the Federal Government, which have been set aside as a reserve for the benefit of the Nation to which the land has been granted. This is true of the current Tsuu T’ina reserve, where none of the lands are directly owned by the Nation. Fee-simple lands, by contrast, are owned by individuals or companies, often do not include mineral rights, are subject to expropriation by Provincial or Civic Governments and do not enjoy other benefits that reserve status land enjoys.
Despite concerns to the contrary, the 2009 agreement would not have transferred the new lands from the Province to the Tsuu T’ina Nation under a fee-simple ownership. Rather, the new lands were set to be transferred directly from the Government of Alberta to the Federal Government of Canada, which is the only body with the jurisdictional capability to add land to the existing reserve. There is no mention of fee-simple ownership of the new lands to be transferred in the 2009 agreement.
Written Assurances: Reserve Status or No Deal
Given that the Province does not have the authority to convert lands into a reserve, the deal between the Province and the Tsuu T’ina could only seek an assurance from the Federal Government to undertake this change of status for the lands being transferred, and to halt the deal if this wasn’t done.
The 2009 agreement required the Province to seek written assurances from the Federal Government that the new lands would in fact be designated as reserve land, and that the existing reserve land required for the ring road would only be transferred to the Province after the new lands were set aside as a reserve (2009 Final Agreement, Paragraph 8 and 36). If these assurances were not received from the Federal Government, then the transfer of the land required for the road would not take place (Paragraph 36).
In addition, if the new lands were later not designated as a reserve, despite having received written assurances from the Federal Government, then the agreement allowed for the deal to be terminated by the Nation with no penalties (Paragraph 44).
Paragraph 44 (b) states:
“In the event that Canada does not exercise its jurisdiction in relation to
b.) the transfer of administration and control of the Additional Crown Lands from Alberta to Canada and the setting apart of such lands as reserve within the meaning of the Indian Act, for the use and benefit of the Nation, as contemplated in paragraph 36
in a manner consistent with the terms of this Agreement, either party may elect to terminate this Agreement by providing written notice of the termination to the other, in which case this Agreement will be of no force or effect and neither Alberta or the Nation will be liable to the other party in relation to any direct or indirect loss, costs, damages or out of pocket expenses, including without limitation all professional costs, fees and expenses, howsoever caused.”
If the 2013 agreement contains the same language as the 2009 deal, then it would seem that the deal contains as much of a guarantee that the new lands being transferred would be set aside as a reserve for the Tsuu T’ina Nation as the law would allow. The 2009 deal does not allow for the transfer of the new lands to the Nation on a fee-simple basis, and calls only for the conversion of the land to reserve status. Without the power to affect these required changes itself, the Province employed the only tool it has to implement the conversion of the new lands into a reserve; several opt-out clauses for the Nation if the lands were not set aside as a reserve.