Structuring Indigenous-Developer Partnerships in the GTHA: A Playbook for Economic Reconciliation With Mississaugas of the Credit First Nation

By:  Scott Smith, Alex DeParde, Ethan Guthro and Larry Sault*

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In the face of the well-documented affordable housing crisis in the Greater Toronto and Hamilton Area (“GTHA”), developers and proponents have a unique opportunity. By partnering with Mississaugas of the Credit First Nation (“MCFN”) — the Indigenous treaty and rights holder over the GTHA — developers and proponents can be at the forefront of furthering economic reconciliation in Canada, while simultaneously addressing the urgent need for increased housing supply in Ontario. These types of partnerships and projects allow Indigenous nations and communities to build out their operating capacity and establish long-term wealth generation. In turn, real estate developers and industry proponents can benefit from advantages specific to Indigenous-led projects, including preferential tax treatment and access to government funding.

This article serves as an entry point for real estate developers operating within the GTHA who are interested in advancing economic reconciliation with MCFN, as aligned with MCFN’s inherent and treaty rights, title and interests that make their business possible in the first place. Indeed, this is an invitation to do business with MCFN in its vast treaty area.

Reconciliation Requires Respect for the Rights of Indigenous Peoples

Long before Europeans stepped foot in North America, Indigenous Peoples owned, occupied and were the stewards of this vast expanse of land we now know as Canada. Indigenous Peoples exercised their jurisdiction and control over the lands, waters, air and resources of their territories and governed according to their own legal orders, laws and traditions. Indigenous Peoples were never conquered; their laws, legal orders and jurisdictions continue to exist and are protected by s. 35 of the Constitution Act, 1982 (“Section 35”).

Many Indigenous Peoples, but not all, chose to reconcile their pre-existing rights and interests in their lands and resources with Canada’s assertion of sovereignty through treaties. These constitutionally protected agreements — while often negotiated under significant cultural and linguistic differences and power imbalances — serve as an integral part of the framework for the ongoing relationship between Indigenous Peoples and the Crown. They are the legal basis upon which non-Indigenous settlement of Canada was permitted to occur at all.

In areas not covered by treaties, Indigenous Peoples retain legal title to their lands, water, air and resources, including “the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those [A]boriginal practices, customs and traditions which are integral to distinctive [A]boriginal cultures.”^[1]

As Canada moves forward with reconciliation, it is fundamental that all Canadians respect Indigenous rights, title and the solemn and lasting treaty agreements upon which this country is built. Importantly, treaties are not relics of the past but rather agreements that continue to operate as part of the legal and moral framework this country is built upon — and upon which future development is based. Treaties, like Indigenous title, are intended to provide the basis on which Indigenous and non-Indigenous Canadians can continue to prosper and sustain our communities, economically and culturally into the future.

The GTHA Is MCFN Treaty Territory

Treaties are not only confined to remote parts of this country. Some of this country’s most developed urban areas are also covered by treaties or Indigenous title rights. In the GTHA, MCFN is the Indigenous community with treaty rights over most of the metropolitan area, including the modern-day municipalities of Toronto, Mississauga, Brampton, Oakville, Burlington, Hamilton and many others. MCFN also has title claims to the Rouge River Valley and the waters, beds of water and foreshore throughout its territory.

MCFN is a part of the broader Anishnaabe nation. The Anishinaabemowin word Missisakis — “many river mouths” — is the origin of the word “Mississaugas.” MCFN established a “Council Fire” (similar to a “seat of government”) at the mouth of the Credit River in present-day Mississauga. From this Council Fire, MCFN exercised its jurisdiction over its territory — commencing at Long Point on Lake Erie, eastward along the shore of Lake Erie to the Niagara River, then down the Niagara River to Lake Ontario, then northward along the shore of Lake Ontario to the River Rouge east of Toronto, then up that river to the dividing ridges to the head waters of the River Thames, then southward to Long Point. MCFN’s territory encompasses the lands, waters and resources throughout this area, as shown in the following map:

In the face of increasing unsanctioned pressure from non-Indigenous settlers in its territory, MCFN negotiated treaties with the British Crown intended to govern the relationship between MCFN — as the Council Fire that governed the territory — the British Crown and individual settlers. These treaties include: the Mississaugas Treaty at Niagara (1781); the Between the Lakes Treaty, No. 3 (1792); the Brant Tract Treaty, No. 8 (1797); the Toronto Treaty Purchase, No. 13 (1805); the Head of the Lake Treaty, No. 14 (1806); the Ajetance Treaty, No. 19 (1818); and the 12 Mile Creek, 16 Mile Creek and Credit River Reserves, Nos. 22 and 23 (1820).

Importantly, there are also parts of MCFN’s territory that are not covered by treaties and that MCFN never surrendered to the Crown. These areas include lands in the southern part of the Rouge River Valley and all water, beds of water and floodplains in MCFN’s 3.9-million acres of treaty lands and territory. Within these Indigenous title lands and waters, MCFN possesses and exercises significant rights of exclusive use and occupation.

Almost immediately, the British Crown, and then Canada, barrelled forward with its project of colonization with no respect for MCFN as a treaty-partner and titleholder with continuing responsibilities and rights over its territory. By the third decade of the 19th century, MCFN were outnumbered by white settlers more than 100 to one and had become confined to an “Indian Village” at the Credit River where the Mississauga Golf and Country Club stands today. They were beginning to become outcasts in their own land. In the mid-1800s, MCFN made the difficult decision to relocate to its present-day reserve near Hagersville, Ontario.

With the introduction of the Indian Act in 1876 and subsequent legislation, Indigenous Peoples were dispossessed of their land, unable to access capital and generally excluded from the broader Canadian economy. Despite the immense pressures of colonialism, MCFN retained its inherent laws and jurisdictions, which — in 1982 — became enshrined in Section 35. As the treaty-partner and titleholder, and steward of its territory, MCFN possesses Aboriginal and treaty rights throughout the GTHA. These rights include title, governance, stewardship and harvesting rights, as well as economic rights which entitle MCFN to sustain its people from these lands and to share in wealth generated within MCFN’s territory. The honour of the Crown requires the Crown and proponents to consult with MCFN on development activities in its territory.

Economic Reconciliation

While there is not a one-size-fits-all definition, the term “economic reconciliation” embodies the proposition that Indigenous treaty, title and rights-holders have a right to share in the wealth generated in and from their territories. Achieving economic reconciliation requires government, proponents and individuals to respect those constitutional rights that Indigenous Peoples continue to possess and exercise in and over their territories. One clear way to action that respect is to invite Indigenous nations into true partnership in the development projects that would not be able to occur without the treaty process — and in some cases occur on unceded Indigenous land.

Indigenous-industry partnership is not a zero-sum-game and can unlock innovative tools to help address problems all Canadians face — like the housing crisis. As the National Indigenous Economic Development Board suggested in its 2019 report on Indigenous Economic Reconciliation, “Indigenous peoples’ involvement in resource opportunities — as participants, equity partners, and proponents — will unlock the economic wealth of the resource sector in an environmentally responsible way for the benefit of all Canadians.”^[2]

Ultimately, economic reconciliation requires the purposeful inclusion of Indigenous Peoples, nations and communities in all aspects of economic activity.^[3] Doing so will ensure that lands and resources within traditional territories are developed in sustainable and culturally respectful ways that fully recognize Section 35 rights and title, while addressing the historic injustices and barriers Indigenous Peoples face in participating in the Canadian economy.^[4]

A Playbook for Partnership With MCFN

Over the last decade, MCFN, like many other Indigenous nations, has taken significant steps to increase its presence as an equal partner in the Canadian economy — and to meaningfully share and benefit from the wealth generated in its treaty and title territory — through strategic partnerships and groundbreaking economic development initiatives. In 2018, MCFN founded its wholly owned business development entity, Mississaugas of the Credit Business Corporation (“MCBC”), to pursue its economic and business aspirations. Recent developments in innovative corporate structuring have made these relationships more beneficial for all and easier than ever to facilitate. MCFN and MCBC are actively involved in numerous commercial, infrastructural and industrial development projects, such as:

• Partnerships and joint ventures with operating companies that provide goods and services to the construction industry within the GTHA, including majority-owned entities such as MCBC Milestone Environmental Remediation that is completing the multi-stage Randle Reef Sediment Remediation project;
• Proponent involvement in major infrastructure projects from transmission lines to energy storage facilities throughout the GTHA; and
• Direct engagement and project participation with major real estate owners and developers such as Canada Lands Company, Northcrest Developments, Waterfront Toronto, TAS Impact and Therme Group.

MCFN calls upon real estate developers to consider a partnership with MCBC, the business entity of MCFN as the treaty- and titleholder over the GTHA using the following “playbook”:

1. Learn: Learn about the history of the territory upon which a project is planned. If a project is occurring in the GTHA, the treaty, title and rights-holder is MCFN.
2. Engage: Engage with MCFN — as the treaty, title and rights-holder — at the earliest stage possible of the project development/planning process and throughout that process. Contact information for the MCFN Department of Consultation and Accommodation (DOCA) can be found at www.mncfn.ca.
3. Partner: Come to the table as a true partner with MCBC, not a performative one. Involve MCFN and MCBC in the conceptualization and planning of your project and be open to creative solutions and project structures to ensure meaningful MCFN participation. Equity ownership is an important indicator of First Nation consent and a critical component of meaningfully moving major projects and real estate developments forward in a positive way. This will ensure that you and MCFN enter and nourish a mutually beneficial and long-term relationship. Contact information for MCBC can be found at www.mncbc.ca.

About Us

The Indigenous Practice Group at Aird & Berlis LLP has significant experience helping First Nations structure equity ownership of major projects and is a market-leading practice in relation to Indigenous real estate development. Reach out to the authors or a member of the group to learn more about economic reconciliation.

*Larry Sault is a Councillor of MCFN. He is also the former Chief of MCFN and former Grand Chief of the Association of Iroquois and Allied Indians in Southwest Ontario. Beyond Indigenous politics, Councillor Sault has held executive positions in private sector and non-profit organizations, and is CEO of Anwaatin, an Indigenous business working with Indigenous communities to participate in enabling Indigenous-led conservation, planning, energy and nature-based solutions.