The First Nations Property Ownership Act: Acting without Consent

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I wanted to make the paper I wrote on the First Nations Property Ownership Act available as a resource. I’m not going to attest to the quality of this paper, but it’s there! I cut out some points to make it fit my class guidelines. I’m guessing my teacher will find this blog in search of plagerism. Hi Mrs. A.G.!!

med_ernesto_land

 

 

 

“What we have is because someone stood up before us. What our Seventh Generation will have is a consequence of our actions today” –Winona Laduke Anishinaabe

 

Introduction

The First Nations Property Ownership Act [FNPOA] is a controversial legislative act thatis anticipated to be introduced by the Conservative government in the near future. The FNPOA is  the result of an initiative that began in 2006 “led by the First Nations Tax Commission under the leadership of Chief Commissioner Clarence T. (Manny) Jules, and supported financially by Indian and Northern Affairs Canada (now Aboriginal Affairs and Northern Development) under Ministers, Strahl and Duncan” (First Nations Property Ownership Proposal [FNPOP], 2012,para.1).  Essentially, the FNPOA would introduce private ownership into interested First Nations so that members could become land owners and that land could be sold to Non-Aboriginals; a comprehensive summary of the act will be included in this paper.

In 2010 the Assembly of First Nations [AFN] passed a resolution rejecting theFNPOA and called for “a strategic lobby to oppose federal legislation for a FirstNation Property Ownership Act” (Narine, 2012, para. 12).  I will demonstrate how the FNPOA is in direct violation and conflict with First Nation rights and ways of being. This paper will provide an overview of the FNPOA and examine the reasoning behind the formation of the act. I will critique the FNPOA and discuss the First Nations rights violations, concerns, and assimilative nature of the act. I will conclude this paper with recommendations for the FNPOA.

The First Nations Private Ownership Act is meant to allow for First Nations members to become property owners and successfully take part in the Canadian economy. The FNPOA would provide First Nations with the option to“hold the legal title to the land currently held by the Crown as reserves under the Indian Act” (FNPOP, 2012, para. 2).  Upon holding said title to the land, First Nations will be able to transfer ownership via fee simple “without any loss of their jurisdiction over the land,” regardless of ownership changes (FNPOP,2012, para. 2).  The term “fee simple” originates from the European legal theory whereby a “political sovereign, held the underlying title to all land in the realm, and all landowners held their estates as grants”(Flanagan, 2008, p. 118-119). Thus, even though the ownership of the land may change the underlying titlewill always lie with the First Nation. The FNPOA has yet to be introduced but the proposal itself gives anoverview of what one might expect to be included in the legislation. The First Nations Property Ownership Proposal (2012) main points cover the following:

•First Nations should have the option (requiring majority support of members) to hold the legal title to the land currently held by the Crown as “reserves” under the Indian Act;

•Individual First Nations should have the power to transfer title in fee simple (with any restrictions they would deem fit) to individuals without any loss of their jurisdiction over the land despite any possible change in ownership;

•First Nation jurisdiction over First Nation Land should be substantially expanded;

•A number of important safeguards should be included to preserve the First Nation character of the land;

•The new First Nation Land should be registered in a “Torrens” style land registry (which could eventually serve reserve lands as well).

The FNPOA is based on the belief that private ownership is the key to unlocking economicopportunities and stability for First Nations communities. Currently, First Nations lands “cannotbe sold or mortgaged unless the Indian interest in it is yielded by the band to the government”(FNPOP, 2012, para. 3).  First Nations are presently able to lease lands to Non Aboriginals butthe arrangements are subject to government approval, a process that can take up to 6 – 10 timeslonger than it would off of reserve land (FNPOP, 2012; Ferreras, 2012).  The closest that First Nations members can get to private ownership is by obtaining a certificate of possession whichgives them rights similar to ownership under fee simple except that the land cannot be sold to a non-band member, a restriction that dramatically decreases its cash value (Flanagan, 2005, p.208). Tom Flanagan (2008), a former advisor to Stephen Harper, states that without privatizationof property on reserves “banks and trust companies will not give conventional mortgages towould be owners” (p. 108). It wasn’t until the 1990’s that First Nations could acquire start-upfunds for economic endeavors and small business loans when Aboriginal business anddevelopment banks were formed (Warry, 2007).  Flanagan (2008) also suggests that the current housing crisis experienced by First Nations is a direct result of the lack of private ownership ofproperty, which would generate incentive for members to adequately invest in their households.

The FNPOP (2012) states that private ownership is essential “for many communities to escapepoverty and dependency, and to develop the confidence and behaviours of independence and self-reliance. FNPO would facilitate more investment, trade and innovation through secure property rights and access to credit” (para. 7).  The basis for the FNPOA is one that aims to enhance the lives of First Nations through private ownership of lands thereby giving them economic means to participate meaningfully in Canadian society.

Many of the First Nations communities that the FNPOA that will be offered to opt into voluntarily are against the act. The examples given in the FNPOP is modern land claims andgovernance treaties that have been negotiated to include such provisions, like the Nisga’a Agreement (FNPOP, 2012, para. 12). The fact that they already exist is used arbitrarily in the FNPO proposals description as if it were a proven framework that could be adoptable by all FirstNations communities (FNPOP, 2012, para. 12).  There are 633 First Nations in Canada, andAboriginal Affairs and Northern Development Canada Minister John Duncan “indicated that six to eight First Nations had expressed interest in First Nation Property Ownership” which is, at most, 1.26% of First Nations desiring the FNPOA (Narine, 2012, para. 7).  The percentage of First Nations expressing interest in the FNPOA is astoundingly low to mandate major legislative changes. Dr. Pam Palmater (2010), of the Center for Indigenous Governance at Ryerson University, suggests that those that are interested can participate in the First Nations LandsManagement Act, an avenue that increases jurisdiction and is already available to First Nations.Jody Wilson-Raybould (2012), the Assembly of First Nations’ Regional Chief of British Columbia, stated that most nations do not support the FNPOA but this does not mean they do not wish to move away from the Indian Act but they do not agree with the “approach and ideological underpinnings of the FNPOA” (para. 7-8).  Thus the FNPOA is not reflective of the majority ofFirst Nations desires, and does not recognize frameworks that already exist to make privateownership possible as routes for those who have expressed interest.

Value Conflict

The notion that individualism and private ownership is primacy and that collectivism and contemporary communal ownership is not a feasible option, is what the FNPOA is based upon.Jules, the previously noted individual spearheading the First Nations Private Ownership Initiative, wrote the Forward to a book called Beyond the Indian Act: Restoring Aboriginal Property Rights, written by Flanagan, Christopher Alcantara, and Andre De Dressay (Palmater,2010, para.8).  Jules claims the book reiterate his father’s vision and the contents of the book hasbeen heavily influential on the current proposal of the FNPOA (Palmater, 2010, para 8).  In thebook, Beyond the Indian Act, Alcantara explains that the “Europeans saw Indians as not havingany concepts of property and believed that, in order to civilize them, they would have to beforced to adopt individualized concepts of property,” and although the FNPOA will be avoluntary act, the belief steering it has not changed (Palmater, 2010, para. 13).  Flanagan (2008)writes, in regards to First Nations people,

“the treaties and the Indian Act have conspired to imprison them within a regime of collective rights that fit badly with the need of a marketeconomy” (p.133).

The stated beliefs then reject and dismiss “traditional, cooperative, or communal economic activities as socialistic” (Warry, 2007, p.139).  Hall (2008) counters this view by pointing out,

“the philosophical problems of dominant economic thought arecompounded by very real practices of colonialism, or of economic protectionism for the colonial elite… Indigenous Nations economies have been damaged by loss of land and resources, notbecause of inferiority or lack of drive”(p.154).

Therefore, by associating First Nations beliefs of communalism with the inability to participate in the economy in any meaningful way, the Conservative ideology behind the FNPOA constructs a view where the only answer for First Nations is one of private ownership.

Rights Infringement

The potential introduction of the FNPOA is in direct violation of First Nations rights andpossibly their treaty rights.  John Rowinski, an Ontario lawyer, states that the FNPOA’s impacton treaty rights has not been properly addressed and that “It’s a huge red flag. Reserve land is protected in most of Canada by treaty, and those rights don’t run so much with the people somuch as they run with the land” (Ashawasegai, 2012, para. 12).  These are Aboriginal rights that are entrenched under Section 35(1) of the Constitution Act of 1982 that “promise to Aboriginal peoples to both recognize and protect their Aboriginal and treaty rights (Palmeter, 2010, para.22).  The FNPOP (2012) does not describe this matter in depth but does state “First Nation ownership of title will eliminate federal government involvement in First Nations land transaction as well as government liability for them” (para. 7).  There is little indication what thisabdication of “liability” for First Nations land entails. Furthermore, the implementation of the FNPOA would directly violate Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP] that states:

“States shall consult and cooperate in food faith with the indigenous peoples concerned through their own representative institutions in order to obtain their, free, prior and informed consent before adopting and implementing legislative or administrative measures that affect them”(2007)

Canada ratified the UNDRIP in 2012, but recognizes that such a declaration is not legally binding (Aboriginal Affairs and Northern Development Canada [AANDC], 2012, para. 9).  As previously noted, there are only 1.26% of First Nations communities desiring the FNPOA ; the relatively low number in favor of the Act is not a basis to move forward and does not reflect “free, prior, and informed consent” (UNDRIP, 2007, p. 6).  Other voices have been raisedagainst the FNPOA, “Stewart Phillip, grand chief of the Union of B.C. Indian Chiefs [stated] there’s widespread opposition to the notion of what he calls privatizing reserves” (Ferreras, 2012,para. 22). The FNPOA is not an Act that represents the majority of First Nations desires and the implementation of the Act is in conflict with treaty rights and violates the rights of the FirstNations.

Additional Concerns

The FNPOA is an example of policy formation and purposed implementation that moves towards the full assimilation of First Nations peoples. The 1969 white paper stated that it would “enable the Indian people to be … free to develop Indian cultures in an environment of legal, social and economic equality with other Canadians” while a section in this failed assimilative policy targeted none other than, property ownership of First Nations lands by its members (University of British Columbia, 2009, para. 3-4).  Palmater (2010) warns that some First Nations that are in poor socioeconomic standing increases the likelihood that all the ownership of lands could be lost. This “erosion of Aboriginal territory, likely to accompany privatization ofreserve property would ultimately lead toward full cultural and political assimilation”(Palmater,2010, para. 25).  It appears as if the Federal government has not strayed too far from its original intentions backed by the same economic theory.

Conclusion

The proposed FNPOA is based on conservative ideology that sees private ownership as the answer to current economic struggles faced by many First Nations. The FNPOA completely disregards a collective way of life experienced by the Indigenous peoples of Canada and deems it incompatible with the current market; a notion that is heavy laden with ethnocentrism. I believe that the FNPOA is a prime example of a failure to gain free, prior, and informed consent of First Nations people on legislative matters that concern their collective future. The FNPOA is only one example of several legislative Acts/Bills that are currently on the Parliamentary agenda that effect First Nations. The actions of the Federal government are in violation of several rights on the part of First Nations peoples.

I am a First Nations woman from Prophet River First Nations,British Columbia, a part of Treaty 8 Territory and my Great Great Grandfather was a signatoryon the original Treaty 8 agreement. In addition, Chief Bigfoot was the last signatory on Treaty 8 in 1911 because he wanted to be assured that the Treaty would be honoured and would be for the good of his people. I see the FNPOA in direct violation of my rights and it infringes upon the rights of the future generations of my people, who were told that these agreements were valid

“for as long as the grass grows and the river flows”.

Furthermore, the FNPOA disregards Aboriginal worldview entirely, forgetting that we as the original people of this land hold a responsibility given by the Creator to protect it and we have the obligation to ensure that we leave the Earth in good condition for those generations that come after us. I recommend that the FNPOA be dismissed and First Nations leadership and the voices of the people are heard. TheFederal Government and First Nations need to redefine their relationship as the treaties weresigned as a Nation to Nation covenant. It is only after this is done that can we find our way forward and implement innovative strategies that come from each Nation, strategies that will respectfully and effectively address their unique situation.

All my Relations.

Helen K

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4 comments

  1. Thank you for this.

    I am the daughter of an assimilated/adopted Mohawk. My family thinks it’s crazy to even say that. We were raised white white white, but the community found me and brought me in.

    Anyway, I’ve done work on this same issue and it’s really hard to explain to people why these things that are all considered to be respectful improvements to the lives of First Nations people in Canada are anything but.

    It’s harder coming from me.

    Even harder now that I no longer live in Canada.

    I hope you will make your voice heard among the people of Canada because it looks to me as though things are getting closer and closer to the edge there.

    Needless to say, I agree with your assessment and feel enriched by reading your work.

    Thanks for letting me comment.

    1. Thank you for reading and sharing a piece of your story with me. I am the daughter of two parents who adopted Christianity and sometimes Euro-centric views. I can reclaim myself, and through this reclamation/decolonization journey it has brought culture back into my nuclear family and given it the weight of importance within my larger family. Our own journey’s have impacts that we sometimes may not see. In regards to you living somewhere else… I am attending school 12 hours from my Traditional territory but for me, that does not make me any more disconnected from it. I carry it within me.

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