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- Beyond the Indian Act: Restoring Aboriginal Property Rights
- Opportunity or Temptation? | Literary Review of Canada
- Give First Nations property rights, book urges
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This is different from what happened in the United States under the Dawes Act, when Indian reservations were subdivided and privatized in a bid to break up tribal communities. Broadly speaking, the political left in Canada believes in aboriginal self-government, while the political right emphasizes the integration of native peoples into the mainstream. In this case, left and right can come together: First nations will be able to get underlying title to their land, an important part of self-government; and they will also find it easier to adopt individual property rights for their landholdings, which will facilitate their participation in the Canadian economy.
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There are no magic wands in the real world of public policy. Going "beyond the Indian Act" will not solve all problems, but restoring aboriginal property rights will enhance economic activity on reserves, create more jobs and business opportunities for first nations people, and improve both the quantity and quality of housing on reserves. First nations' property rights will also benefit all Canadians. Tom Flanagan is professor of political science at the University of Calgary. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way.
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Beyond the Indian Act: Restoring Aboriginal Property Rights
Log out. Article text size A. To view your reading history, you must be logged in. Log in Register. Open this photo in gallery:. Tom Flanagan. FC: What forms of property rights are available on First Nations reserves now? And why are they inadequate? TF: There are three main forms. One is customary rights, which is simply based on possession and use over several generations by families. So if you have disputes, as you often do, about customary rights they have to be settled by Band Council or by somebody appointed by the Band Council.
The second form is a certificate of possession, which is mentioned in the Indian Act. The third type of existing right is the leasehold. Nobody knows how many leases there are but probably tens of thousands. Leases are marketable instruments, so once they are created they can be bought or sold.
Opportunity or Temptation? | Literary Review of Canada
In that sense they are stronger than certificates of possession. There are a lot of ugly stories from reserves about what has happened when leases get close to their termination period, and sometimes Band Councils have decided not to renew the lease because they would like simply to confiscate houses that have been built on it and use them for their own members. FC: How would a secure property rights regime on reserve allow for expanded economic activity and the development of a private sector? TF: Basically by reducing transaction costs. Under the regime of leasehold it is possible to have investment on reserve for various purposes, but it takes a lot of time and money to create the usable property rights for that.
So you have to have a lot of lawyers at the table representing the Band and the investor and the Department of Indian Affairs and the Department of Justice and sometimes the Province and so on. FC: How would individual natives benefit from owning their own home and property?
TF: We think that this would make a big difference to individual people if the First Nation took the second step of not only owning its own land but also creating individual titles to pieces of it. This would allow individuals, for example, to obtain mortgages in their own name because the bank could now attach the property if the mortgage was not serviced. So banks could get the property if necessary; therefore, it could be used as security for a loan. Right now individuals on reserves, if they want to get a mortgage, have to have a Ministerial or Band Council guarantee.
So now individuals could do this in their own name. Secondly their house could become an investment vehicle or savings vehicle for them because there would be a larger market of purchasers and the value would increase. Thirdly they could borrow against it for other purposes. Say you want to buy a new fishing boat or logging truck or buy some tools and go in to the plumbing trade—whatever you want to do you have that option now of using your home as security.
Another side benefit is in case of family breakdown. There is no mechanism in the Indian Act for dividing certificates of possession in case of marital breakup. The normal way of dealing with marriage breakdown in the larger society is for the family home to be sold. The proceeds can be divided, which finances the parties into starting their new lives. So these are some of the benefits that we think would improve life for the First Nations that took that step.
Give First Nations property rights, book urges
FC: In your book you mention the experience of the U. This phenomenon is significant to the core arguments of this book, and its causes are inadequately addressed. The reason given for why more First Nations have not embarked upon a system of individual property rights is time—that is, it takes too long to obtain secure underlying title. But there is little research included in this section to support such a conclusion. This book seems more about trying to solicit support for the organizations that resulted from the legislation of the s and s than for any radical new idea.
Yet little analysis is dedicated to whether the current institutions benefit a majority of First Nations or whether additional institutions are necessary. I also note that there is shamefully little attention paid to the legal, political and social realities of aboriginal communities.
For example, there is hardly a mention made of Supreme Court of Canada decisions that detail the fiduciary obligations owed by the Crown to aboriginal peoples and the limits to the ways in which First Nation lands can be used. Similarly, section 35 of the Constitution Act, is a significant promise to aboriginal peoples to both recognize and protect their aboriginal and treaty rights.
Perhaps most importantly, section 35 is a constitutional promise to aboriginal peoples to protect their distinctive cultures and identities for future generations. Since land is critical to the identity of First Nations as well as to the maintenance of their cultures and communities, it seems illogical to suggest that First Nations are best served by dividing up their reserves into individually owned parcels of land available for sale to non-aboriginal people in the name of economic development.
In the end, if these authors want their book to be taken seriously and engender constructive policy debate, they ought to be more forthcoming about the potential negative impacts of what they are proposing. The potential for entire reserve land bases to be lost under this proposal is significant given the high rates of extreme poverty in First Nations impoverished families might sell land for basic necessities. This sounds similar to his arguments in First Nations that aboriginal societies in Canada were not civilized, that assimilation of aboriginal peoples had to happen and that one of the ways to achieve assimilation was for aboriginal peoples to abandon notions of communal property and implement a system of individual property rights.
Flanagan has since published a second edition of First Nations that adds a chapter but leaves the original work untouched.