Property rights could unlock native reform
Published On Sat Jan 28 2012
First Nations chiefs listen to speeches during the Crown-First Nations gathering in Ottawa. (Jan. 24 2011)
FRED CHARTRAND/THE CANADIAN PRESS
Prime Minister Stephen Harper met with indigenous leaders in Ottawa last week to discuss how they might “reset the relationship” between aboriginal and non-aboriginal peoples.
Unfortunately, Canada’s experience with major policy reforms affecting aboriginal peoples does little to inspire confidence.
In 1969, for instance, the federal government proposed solving the “aboriginal problem” forever by terminating “Indian” status and dismantling the Department of Indian Affairs.
And in 2005, Ottawa and native leaders negotiated the Kelowna Accord, which promised to inject billions of dollars into chronically underfunded aboriginal policy areas, such as housing, education, economic development, and health, among others. It was never implemented.
These and other mega-reform packages failed mainly because they were too comprehensive — the political costs of implementing them were too high for any politician to endure.
Learning from this history, the Harper government has committed to pursing incremental reform.
One example is the proposed First Nations Property Ownership Act (FNPOA), a piece of legislation being developed by Chief Manny Jules with the blessing of the Department of Aboriginal Affairs and the Prime Minister’s Office.
In essence, Chief Jules’ legislation will allow First Nations to opt out of the land management provisions of the Indian Act to restore the more efficient and effective individual and collective property rights that aboriginal peoples enjoyed prior to the Indian Act.
Once this legislation is passed, the Crown will transfer underlying title and jurisdiction to reserve lands to those First Nation communities that have opted into the legislation.
With underlying title and jurisdiction, the First Nation community would gain ownership of their land forever, even if non-aboriginal peoples acquired “fee simple” property rights to parts of the reserve.
This would be similar to what happens off-reserve when Canadians buy land. Although we may own our land in fee simple, the Crown owns the underlying title, thus preserving the land base of the country.
Underlying title and jurisdiction also gives the First Nation community the power to regulate land usage, either through zoning, taxation and even expropriation under certain circumstances, such as for the construction of public works.
More important, underlying title allows First Nation communities to subdivide a portion of their reserve land into fee simple lands for individual members to use. Band members could then use these fee simple lands to generate wealth through mortgages, loans, and buy/sell transactions, much like Canadians do off-reserve, but without any of the hassle of dealing with significant bureaucratic red tape that most members have to endure under the Indian Act.
Finally, the FNPOA would create a new, First Nations-controlled Torrens-land registry system, which experience has shown to be the best way to create secure and efficient record-keeping of land title and ownership.
In sum, the FNPOA is a model for how the federal government should approach aboriginal policy reform.
In particular, the federal government needs to listen to First Nations and help them develop parallel legislation that First Nations can voluntary enter into to escape the constraints of the Indian Act.
Significant change to aboriginal-settler relations in Canada is unlikely to happen in any other way and indeed may produce the type of transformative policy reform that leaders and policy-makers have long pursued but have yet to accomplish.