Problem
In summer 2011, Membertou was working with a partner to build a hotel that would be connected to the adjacent Membertou Trade and Convention Centre by a pedway.When the chief and council were advised by their legal counsel that a federal permit to guarantee pedway access to the owner of the hotel was required, they had to decide how to proceed.
The Mi'kmaw community of Membertou (sometimes referred to as Membertou First Nation) is located within the Cape Breton Regional Municipality (CBRM) on Cape Breton Island, Nova Scotia. The urban reserve, located on Alexandra Street in Sydney, spans103.6 hectares; however, Membertou also has three other reserves totalling 885.7 hectares. The community has a population of 1440, with 871 residing on-reserve.
Given the Membertou's history of being forcibly removed from the Kings Road Reserve in the 1920s and then surrendering that land in the 1960s for a community medical clinic that wasn't built as had been expected, land surrender and designation was a particularly sensitive issue for the community. Indeed, until now, Membertou had largely refused to totally surrender or designate land for any reason; however, 28(2)permits have been executed in some cases, most notably, to allow municipal water and sewer servicing the Cape Breton Regional Hospital to cross the reserve.
Since the MTCC was located on reserve land, use of that land and construction on it was governed by the Indian Act and relevant federal regulations. Because the hotel was located on fee simple land, its construction was governed by municipal zoning laws and regulations of the CBRM. The pedway connecting the two would require structural supports located on both fee simple and reserve land, and the pedway itself would cross the airspace of both types of land. Technically, then, about half of the pedway was subject to federal regulations and the Indian Act, and half of the pedway was subject to municipal regulations and common law; it would exist within two different legal and regulatory regimes.
Further complicating the situation was the fact that the two facilities to be connected by the pedway had different owners. The MTCC was owned by Membertou, while the hotel was owned by D P Murphy. Moreover, the lenders backing the hotel were concerned that access between the two facilities would be maintained in the event that they had to realize on their security or take over the hotel (in the event of foreclosure). Consequently, some means of acknowledging the hotel's interest in the pedway and guaranteeing access to it was a requirement of D P Murphy's financing for the hotel.
Membertou's legal counsel suggested that the only practical way to acknowledge the hotel owner's interest in the pedway and guarantee access to it, would be through a 28(2) permit from Indian and Northern Affairs Canada (INAC, now Aboriginal Affairs and Northern Development Canada). A 28(2) permit would allow a non-native interest to occupy or use a portion of the reserve. The permit, somewhat similar to a common law easement, is not normally granted in perpetuity, but for a defined period of time; however, in recent years, INAC had allowed permits with non-specific time periods.
The permit would be established via an agreement between Membertou and the federal government, and would require ministerial approval. A band council resolution (BCR) in support of this permit would be required to proceed.
Finally, the prospect of a 28(2) permit, which requires federal government approval, has never been appealing to Membertou, because it requires the chief and council to acknowledge the federal government's authority over First Nation reserve lands, in this case the land over and airspace through which the pedway would cross. The reluctance to pursue 28(2) permits stemmed from the fact that the process for obtaining one, though less intrusive, was somewhat analogous to the process of surrender and designation found in other parts of the Indian Act. As a result, it causes pause for chief and council when they encounter the imposition of rules through the Indian Act and recalls memories of past experiences.
Membertou had gained a reputation for its ability to work around roadblocks to economic development where reasonably possible. If they encountered a barrier, they always found another way; however, in the case of the pedway, Membertou had run out of options. There was no workaround to be found. Informed that they would have to ask INAC for a 28(2) permit to guarantee pedway access to the owner of the hotel, the chief and council were facing what may reasonably be characterized as a dilemma: the high principled position that First Nations should not be constrained by the Indian Act when making decisions regarding the use of reserve lands versus the more particular, pragmatic considerations required in making a decision in the area of economic development
• Question I: What recommendation could make to Chief Terry Paul and the Membertou Council regarding the pedway?
• Question II: How does the involvement of non-Indigenous businesses affect this case? What recommendations would you make to Terry Paul regarding the involvement of a non-Indigenous organization?