Appraisal Challenges in First Nations

Initiating Collaborative Opportunity

Ottawa Chateau LaurierJune 8, 2012

How the AFN Functions

• Represents the collective voice of the Chiefs of 634 First Nations

• An Elected National Chief is supported through consultation with 10 Regional Vice Chiefs

• Mandates and Directions are provided through a process of Assembly Resolutions

• These Resolutions normally come from Chiefs Committees that are supported by Technical Working Groups

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How the AFN Functions cont’d

• Chiefs Committees are formed to address the needs and priorities of the collective FN voice

• AFN Secretariats have been developed to reflect these needs and priorities and carry out the identified work required

• Representatives on the Chiefs Committee on Housing and its supportive Technical Working Group are appointed by the Regional Chiefs

• The Housing Secretariat funding comes partially from ANNDC to meet mutually negotiated deliverables

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How the AFN Functions cont’d

• Secretariat represents collective FN interests on a number of National Committees

• National Housing Liaison Committee• National First Nation Indoor Air Quality

Committee• Interdepartmental Mould Working Group• Recent 1996 On Reserve Housing Evaluation

Advisory Committee• No binding decision making on any of these

committees from the First Nation perspective

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The First Nation Vision • Recognize the FN as the authority having jurisdiction

and gear all program strategies to respect that authority.

• Anticipation of the building of a Institutional Framework to support the capacity for FN to exercise the inherent jurisdiction in Housing and Infrastructure

• A framework that sees the creation of FN Regulatory

Environments and the means of Operational Control that allows the transition of programs, activities and initiatives from federal departments and agencies into First Nation hands

We live in some Harsh Environments

Some Very Harsh Environments

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Policy Renovation • Clear distinction between imposed AANDC housing

policy and the development of a policy that supports FN needs and priorities at the FN level

• Illustrate an inclusive manner for policy formulation, implementation and delivery by AANDC and CMHC

• Changing intent and limitations of current external interventions and supports to internal First Nation control

• Consideration of First Nation capacity development through a First Nation Institutional framework

• Re-focus on economic development, job opportunity and First Nation objectives

A Legacy of Government Intervention

How Do You Appraise This?

Are we Achieving Minimum Standards?

Building Code Standards that ensure that all homes built in First Nations provide for:

• Health

• Safety

• Fire Protection

• Structural Stability

• Accessibility

GoC Policy Evaluation • There is consensus that the role of AANDC and

CMHC is, and should be, primarily that of a funder.• First Nations expect support in building capacity to

take complete control over management of housing

• AANDC capacity building support has lacked strategic preparation, clear vision of needs, and without a strategy

• Any implementation was compromised by the lack of a clear and communicated policy, flexible operational guidelines, and appropriate capacities

• Improvements are required to housing design, planning processes, capacity development, and to communications and knowledge transfer

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AFN Resolution No. 14/2007• Resolution No. 14/2007 calls for a comprehensive

approach that includes all aspects of housing, from social housing and the care and control of band owned housing assets to individual home ownership.

• The Chiefs in Assembly directed the AFN to advocate for a balanced Housing Framework that maintains the ability of FN communities to move forward with local, territorial and regional housing strategies.

• Work towards replacing external GoC controls and interventions by creating and implementing internal First Nation solutions that provide new options and opportunities.

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What Will it Look Like• Sound and Comprehensive Housing Policies• System of land tenure and lot servicing• Appropriate codes, standards and by-laws• Compliance and enforcement measures• Quality assurance and performance measures• Predictable and sustainable financial practices• Defines the parameters that an independent housing

authority functions• Developed collaboratively and ratified by community

consensus

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Model Housing Policies

• Governance structure and operational controls• Housing program options• Construction procedures and guidelines• Application and selection process• Occupancy regulations and responsibilities• Financial management and administration• Oversight and appeals mechanisms

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AFN Responsibility• Aggressively pursue a position at the table in the

development of a National Strategy that is inclusive of local, territorial and regional First Nation jurisdictions while accommodating the recommendations of the 1996 On Reserve Housing Policy Evaluation.

• Continue the developmental work in defining the parameters of a First Nation ‘regulatory environment’.

• Continue defining the operational controls that assist First Nations in creating local or collective housing authorities that will create an institutional framework that allows for the transfer of federal programs, activities and initiatives into First Nation hands.

Systems of Land Tenure• Certificates of Possession• Long Term Lease Hold Purchase• Land Trusts• Designated Lands for Development• First Nation Land Management Act Codes• Land Lease Cooperative (Designated Land)• Land Lease Non Profit (Designated Land)

• But Who Controls the LAND?

Is Aboriginal title really Is Aboriginal title really worth less?worth less?

What are the features of What are the features of converting title into a converting title into a

marketable asset?marketable asset?

Remembering Remembering MusqueamMusqueam

Why 50%? Economist blamed:Why 50%? Economist blamed:• lease disputes lease disputes • political conflictpolitical conflict• taxation issues taxation issues

In short, legal uncertainty In short, legal uncertainty

Remembering Remembering MusqueamMusqueam

• The majority of the Supreme Court of Canada Judges opined that current land value was to be calculated as leasehold lands, with its on-reserve status.

• Thus the Court determined that fee simple lands are not the same as reserve lands. Furthermore, Supreme Court agreed with the trial judge that the values should be discounted by 50% based on the appraisal reports filed with the court. Hence, the market value of a leasehold residential property located on Musqueam was discounted by 50% of that of a similar property located on fee simple lands.

How 2 small changes How 2 small changes changed everythingchanged everythingCMHC (mortgage insurance on designated

lands):• increased demands by prospective

purchasers which include high ratio buyers;• lowers the rate of interest by bringing in a

conventional mortgage rate;• the number of conventional lenders willing to

lend on such properties increased.

How 2 small changes How 2 small changes changed everythingchanged everythingFNLMA: Nipissing First Nations Band

Council:

• agreed to extend lease periods to facilitate amortization requirements

• provided fast, simple confirmation of BCR authorizing lease assignment

• provided clear rules in granting BCR

Securing LendersSecuring LendersWhat is needed:• basic property rights• equal treatment of assets for security• predictable priority rules• searchable property or asset registry• predictable enforcement of creditors’

rights• clear conflict rules (third parties)

What can be What can be mortgaged?mortgaged?

• Designated landsDesignated lands• Sub leases under Certificates of PossessionSub leases under Certificates of Possession• Permits issued under Land Codes of the Permits issued under Land Codes of the FN FN

Land Management ActLand Management Act• Bands with self government deals Bands with self government deals

(ie,Westbank)(ie,Westbank)• 28(2) permits (exceptional)28(2) permits (exceptional)• Nisga’a (issues)Nisga’a (issues)• Cree-Naskapi (of Quebec) Act (federal)Cree-Naskapi (of Quebec) Act (federal)

Where is Fee Simple??Where is Fee Simple??• First Nations have a relationship with our territories that is

rooted in our spirituality as a gift from the Creator. • Our spiritual connection with our territories is the

foundation of our life as Peoples. First Nations have a sacred responsibility to honour and preserve our spiritual connection to our territories.

• The proposed Property Ownership Act would endorse “fee simple title” of First Nation reserved lands, a concept that is in direct contradiction to First Nation sacred responsibilities and distinct relationship to our territories.

• We collectively affirm our inherent Aboriginal and Treaty rights and jurisdiction to advance our own land tenure systems as directed and mandated by our peoples, consistent with our spiritual connection with the land

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Developing a Regulatory Environment

• First Nation regulatory environments at the local level that are based on good governance

• Provision of capacity development measures that assist in creating all of the key features necessary for independent operational control of a housing portfolio

• Ensure a system of advisory support for the development of housing authorities that will act as an operational control of the housing portfolio within the regulatory environment

• Strategic Framework Agreements with various housing and infrastructure technical service providers such as housing managers, financial officers, land managers, building officers, firefighters, etc…

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Operational Control of Housing

• Working within a mandate from Chief and Council but operating the housing portfolio independently.

• The housing portfolio operates within the parameters of the predetermined and ratified regulatory environment.

• Independent governance and decision making process endorsed by Chief and Council.

• Set aside finance and funding mechanisms.• Sustainable management and administrative

practices removed from band administration.• Professional capacities for construction

management, operations and portfolio asset maintenance.

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Future Steps and Measures• improve relationships in a multi jurisdictional

environment with First Nation communities and their duly mandated organizations whether they be on or off reserve

• improve the functional capacity within the First Nation housing sector to allow full engagement and participation in new and existing housing opportunities

• increase the control and influence of First Nations over housing issues, programs, services, strategies, and decisions that affect the living conditions of First Nations

• improve integrated and reciprocal housing services between First Nations and those existing mechanisms found in the multi jurisdictional off reserve environment

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Session Questions

What role do you see this new relationship between First Nations and the AIC in the future delivery of programs, activities and initiatives? Is there one?

With such a large gap in the human, technical, financial and institutional capacities of First Nations; what measures need to be undertaken to overcome the gaps and how would you prioritize those measures?

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Session Questions

How can the AFN assist in developing a collaborative First Nation network for housing that defines the process that a First Nation must undertake to build the desired capacity to undertake activities with the AIC?

Are First Nations ready to individually or collectively create the necessary Regulatory Environments to govern all aspects of housing within their jurisdiction that satisfies the AIC. What steps and measures are required to achieve this?

What degrees of consultation with First Nations need to take place following the recommendations made that will guide the new relationship with the Appraisal Institute of Canada?