My last post was a critical examination of the arguments of proponents of on-reserve property reform. In this post, I’ll examine some of the claims of critics of the reform initiative. Again, it is most unfortunate that proponents of reform are quite dismissive of these claims and their underlying concerns (indeed, it is an odd way to advocate for change).
Claim 1: Reserve lands can only be held collectivelyFalse.
First, and as a general proposition, there is little doubt aboriginal title is a collective right. Even reserve land is held collectively by the First Nation (see Delgamuukw – http://canlii.ca/t/1fqz8 – for aboriginal title or Guerin – http://canlii.ca/t/1lpfn – for reserve land – although in Guerin, the collective nature of the First Nation’s interest was never actually in issue). Internationally, indigenous title is also recognized as a collective right held by the indigenous nation. This is true in terms of comparative law (for example, Mabo) and in terms of international forums (for example, Awas Tingni v. Nicaragua – http://www1.umn.edu/humanrts/iachr/AwasTingnicase.html ).
The distinction between collective rights and individual rights has been a major barrier to recognition of indigenous rights internationally and domestically. One of the major accomplishments of the UN Declaration on the Rights of Indigenous Peoples is its articulation of indigenous rights both as individual rights and as collective rights. Individualizing reserve property could undermine the indigineity, or the ‘Indianness’ of reserve lands.
There is a major caveat to this general proposition. First, as detailed in my last post, there are already a number of individual property rights held on reserves across the country. They are not fee simple rights, but they are not collective in nature. So far as I can tell, this has generally been the case for quite a long time.
Aboriginal title is a collective right and reserve lands are held collectively by the First Nation.
There is really no reason why, if a collective desires to do so, it should be deprived of the ability to order its internal affairs – including assigning and managing property rights.
The relationship between aboriginal title and reserve lands is another story for another day.
Claim 2: Individual ownership of reserve lands violates the treaties
Unless I’m grossly misinformed, there is nothing in the treaties that requires a particular kind of land-holding. To me, the whole point of the treaties is that if treaty First Nations want to some day adopt individual ownership, they are free to do so (and don’t for a second thing this hasn’t been done before in Canada). By contrast, if treaty First Nations seek to preserve their traditional (and presumptively collective, see more below) means of relating to their lands, the treaties provide the freedom to do so. This of course, precludes specific language in treaties that precludes First Nations from adopting particular forms of land tenure for reserve lands.
Claim 3: Alienability of reserve lands is likely to occur if on-reserve property is reformed
Despite the claims of proponents, it is very hard for me to imagine how the tremendous benefits they suggest come with individualization of property will come absent an expansive right of alienation (that’s the ability to transfer your land as you see fit). This is, of course, one of the major ‘benefits’ of fee simple title.
In order to ‘unlock’ the capital, one needs to offer the property up for security to a lender. In the event of default, the lender can then foreclose, take the property and sell it on the open market. If the ‘open market’ is defined only as citizens of the First Nation, the value of the property, at least for the purposes of securing credit, is diminished (because the market is smaller – this means there will be less competition among potential buyers and it raises the prospect that the property may stay on the market longer, increasing carrying costs). Ultimately, however, it seems inescapable that someone who is not a First Nations citizen (or a First Nation) will end up with a proprietary interest over reserve lands (like the bank).
This does not necessarily lead to a situation where parts of a reserve will be owned by non-natives in fee simple. But that is a real fear and it would create several very real problems (such as exacerbating the regulatory ones discussed below). I can’t escape the conclusion that non-natives will end up with some kind of interest in on-reserve property. One way or another, I believe that will lead to some very nasty and some very unpredictable conflicts.
While I see no reason that privatization will necessarily lead to a Dawes-style outcome in Canada, I think it’s a very real possibility, and that irrespective of safeguards put in place to attenuate alienability concerns, I see it likely reserve lands will be alienated to non-citizens (or non-First Nations).
Claim 4: Individual property could lead to an erosion of First Nation jurisdiction
Emphasis on ‘could’. As mentioned above, one of the qualities of aboriginal title and traditional forms of relationship with the land is the concept of collective ownership. Individualizing land titles to make them appear more like provincial titles may import provincial land use and environmental laws into reserves.
Section 91(24) of the Constitution Act, 1867 states that the federal Parliament shall have exclusive jurisdiction over “Indians, and Lands reserved for the Indians”. Section 91(13) states that Provinces have exclusive jurisdiction over “Property and Civil Rights in the Province”. Why is this important? I mean, aren’t reserves “Lands reserved for the Indians”?
They are, but there is a line of cases which suggest that provincial laws of general application may nonetheless apply. “May” because there are very few cases involving reserve lands and provincial jurisdiction, most cases involve provincial attempts to exert jurisdiction over Indians. In these cases, a provincial law of general application concerning, say, civil rights, is held to apply so long as it does not affect the core area of federal jurisdiction.
The ‘core’ of federal jurisdiction is sometimes referred to as ‘Indianness’. While one could have a field day with both the term and the underlying concept (and I invite readers to reflect on this), the idea is that if some aspect of regulation affects something that is core to the identity and quality of being ‘Indian’, provinces lack the jurisdiction to regulate (note – this argument is not whether a law can be enforced, but rather by whom).
If collective ownership of reserve lands were abolished and replaced with individual tenures, one might argue those lands no longer possess their inherent ‘Indianness’. As a result, provincial laws of general application might apply of their own force to reserve lands.
There is a long line of precedent standing in the way of reaching such a conclusion. Derrickson v. Derrickson (http://canlii.ca/t/1ftsn) held that possessory interests in reserve lands are at the core of 91(24). What I’m worried about is not possession, but regulatory incursions by provinces in environment and land use.
I would argue that the Derrickson reasoning should also stand for non-possessory interests in reserve lands, including jurisdiction over environment and land-use (indeed, environmental management should likewise be at the core of 91(24)). What disturbs me is the proclivity of courts to apply provincial environmental laws on reserves, evidenced through cases like R v. Charles (http://canlii.ca/en/sk/skqb/doc/1997/1997canlii11288/1997canlii11288.html) – which I’m not sure should be considered good law, and may be better characterized as a NRTA case on this point.
My fear on this point comes from experience in the US. While others are concerned with actual diminishment of Indian lands, I’ve had the unenviable task of training EPA personnel on exercising environmental jurisdiction on checkerboarded reservations. To put it bluntly, its a mess. Federal, tribal or state environmental rules may apply to adjacent parcels of land, making land use planning and environmental management…challenging. In recent years, courts have dramatically expanded state jurisdiction over tribal lands in a variety of areas.
While I believe this is a concern that can be managed in Canada through the development of a federal regulatory regime that allows First Nations to develop their own laws, (the related doctrines of interjurisdictional immunity and paramountcy would be powerful allies here) I see very little openness to doing so. What discussions I’ve seen tie First Nations exercises of jurisdiction to provincial rules (to ensure consistency). This, incidentally, is precisely what proponents of property reform hope to achieve with respect to titling. I doubt the purpose is the diminishment of First Nations jurisdiction, just as I doubt there would be an immediate effect. The long-run consequences on First Nation jurisdiction are frightening.
Claim 5: Implementation challenges means reforms may not be fully implemented – these reforms will likely be made available only to a few willing First Nations, while broader reform will be neglected
This is based on experience with the First Nations Lands Management Act. That Act was meant to modernize on-reserve lands management and free willing First Nations from the oppressive nature of the Indian Act.
From the Aboriginal Affairs website, “First Nations under First Nations Land Management Act have the authority to create their own system for making reserve land allotments to individual First Nation members.” (http://www.aadnc-aandc.gc.ca/eng/1317228777116) Sound familiar? An innovative way for First Nations to reform land tenure on reserve by individualizing those tenures!
The problem is implementation. When the FNLMA was announced, I believe 14 First Nations signed on and were resourced to develop their own land management codes. It appears that about 30 First Nations have signed on, but “a policy decision was taken to close the regime to new entrants in 2008 because no long term funding had been determined”. That’s a major problem.
Its beyond me why the government wouldn’t pursue on-reserve property reform by supporting the FNLMA. First Nations are rational, and if there are successes out there, many First Nations would be interested in duplicating that success.
In fact, the inability to resource the FNLMA makes one wonder whether FN property registries will be supported beyond 1, 3 or 5 years, if at all. First Nation policy is plagued by a tendency for players to announce a great new ‘idea’, pilot the idea, then proceed to underfund once demand turns out to be much greater than anticipated. This leaves us with a lot of half-projects and orphaned initiatives.
Why does this bother me? Because between the inherent self-determination of indigenous nations, the by-law provisions of the Indian Act and federal inherent right policy statement, there are more than enough mechanisms for First Nations to effectively manage our own lands and unlock capital. The problem, in my mind, is the extreme degree of control that AANDC seeks to exercise (indeed, fiduciary principles of law may require them to exercise such control, but exploring why that’s not accurate is another post) – either through funding, policy statements or legislation.
I prefer legislation because its more transparent than the other two.
The other thing that bothers me is I fear those select First Nations which are friendly to this idea will receive substantial subsidy and preferential treatment from the government when I believe there are alternatives to this reform which would be at least equally effective in unlocking capital. Instead of encouraging competition and innovation, I fear the inclination of the powerful is to stifle it. Possibly a baseless fear, but I don’t hear many calls for diverse policy ideas in aboriginal affairs right now (nor have I in a very, very long time).
Claim 6: Property rights aren’t recognized by the law now anyways
Yes, we are still waiting for that Declaration of aboriginal title. It is true that in general, collective rights do not do particularly well in court and are remarkably difficult to enforce. It’s also true that Canada’s legacy of squatters and individualized property rights, although mostly from the 19th Century, is pretty poor.
With only one possible caveat (legislative enactments may influence aboriginal title law), this debate isn’t about aboriginal title, nor is it even about collective rights. We are discussing individual rights in property. To be honest, I was surprised to learn that courts not only recognize, but enforce individual property rights on reserve.
Of course, this enforceability cuts two ways. Say a bank or a non-native investor acquires a right in some property and wants to manage it or dispose of it in some fashion contrary to the laws of the First Nation (either by-laws or customary laws). Or, alternatively, in some fashion that creates a nuisance. This pits either the First Nation, or an individual citizen, against a sophisticated and well resourced investor who would be capable of dragging a dispute through a protracted court process (for example).
In general; however, I find this objection to be unremarkable.
Claim 7: Individual Property rights will undermine First Nation culture
I can’t even express an opinion on this one, but I’ll provide the background. The relationship between the people and the land is central to many First Nation cultures. Similarly, the relationship is always (to my knowledge) defined collectively. The nature of the collective may change from nation to nation, being defined by family, clan or nation – but the relationship is always defined as a collective relationship. Indeed, traditional knowledge and traditional teachings are often expansive, defined by some as ‘holistic’, as opposed to ‘reductionist’. The nexus between people, land and culture is a nexus that I believe is quite misunderstood and underdeveloped in the law of aboriginal rights. Although that’s another story.
However, there already exist a great number of individual property rights on reserve. Is this at least partially responsible for cultural erosion experienced by some First Nations? I don’t know, but depending on one’s inclination, one may be predisposed to answer either ‘yes’ or ‘no’. I can say there are many examples of landless peoples who have managed to maintain both language and culture. I can also say that those examples may be meaningless here due to the centrality of land and territory for First Nations.
Proponents will tell you that we shouldn’t worry about such concerns because First Nations opting in will be exercising their right to self-determination, or, more accurately, their right to determine their own development. This is true, and I for one support First Nations self-determination – even in those cases where I believe it may be exercised in a sub-optimal fashion. Here, I would suggest that an indigenous nation has the right to cultural change, should one accept that individualization of land tenure would result in a cultural shift. Incidentally, I’m not sure Canadian courts would be as liberal in their view on this point as I.
But self-determination arguments don’t counter the general objection that the reform initiative as a whole will undermine the collective aspects of First Nation culture. They simply seek to evade the discussion completely by justifying such an initiative on a nation by nation basis. Indigenous peoples understand that they (individually and collectively) hold obligations to future generations and make decisions considering impacts of future generations. But indigenous peoples also understand that they also hold obligations to ancestors and make decisions that honour the legacy and the sacrifices of ancestors.
In the end, I feel this is a judgement to be made by both individuals and collectives. I’m not sure how this concern could be accomodated in the context of a property reform initiative, but I am sure that failing to recognize it as a valid concern isn’t going to help. I could see several challenges to the initiative, legally and politically, domestically and internationally, which all have this concern at their root. In my opinion, it is a valid concern. That the Indian Act itself undermines culture, as do many other legal and policy instruments offers no real defence. Expecting development of policies and legislation that support healthy economies and First Nation culture; however, should not be an unrealistic expectation.
That, in my mind, is one challenge which must be met to achieve ‘reconciliation’ in Canada.
One must remember that the Indian Act was not the first legal instrument to place restrictions on alienability of reserve lands. There is a long legal tradition, dating back to the Doctrine of Discovery, which does this. The Doctrine of Discovery, incidentally, operates to prevent foreign nations from dealing with indigenous nations. It places no restriction on indigenous nations in terms of their property rights, their jurisdictions, or their ability to conduct foreign relations – though it affects each indirectly in very profound ways.
In Canada, the Royal Proclamation and the Treaty of Niagara provide two pre-Indian Act examples of placing alienation restrictions, again, not on indigenous nations, but others. Finally, one major beneficial impact of the Indian Act was to stop the avaricious practices of land speculators and squatters in Indian reserves. The Act itself is largely responsible for the extremely limited amount of reserve land remaining today. I understand how people would be skeptical that removing these so called ‘protections’ of the Indian Act would undermine the reserve land base.
I’m not sure I agree with them.
It should be possible to structure a legal regime in such a way that First Nations collective property rights and First Nations jurisdiction would be protected and even enhanced through a property reform initiative. What I fail to see is any meaningful attempt to even engage these issues, nevermind to resolve them.
When I combine this concern with my previous conclusion that the beneficial effects of individualizing property are likely overstated (and quite overstated), I would be reluctant to support such an initiative. I find many of the claims on both sides of the debate are overstated. While it is appealing to consider ‘unlocking’ the capital on-reserve, I wonder whether this could be accomplished through other, less disruptive means.
On the other side, I am most concerned about alienability and jurisdiction. Yet neither of these concerns are insurmountable or unmanageable. However, land is very much unlike capital. There is a finite supply of it. On many reserves, there is not enough of it to sustain a growing population. The relationship between the land and the people is central and sacred to many indigenous nations. To gamble with the lands, I would suggest there needs to be much stronger evidence the benefits are real as well as a much more developed series of safeguards.