Lands No Longer Reserved for Indians? A Closer Look at The First Nations Property Ownership Act

 There is an intense, polarizing issue among Canada's Indigenous Leaders regarding the proposed First Nations Property Ownership Act (FNPOA).  FNPOA is being advocated by the First Nations Taxation Commission as an “Optional” piece of legislation for First Nations.  The federal government has been funding research on the topic of “title systems” since 1997, so there is tangible investment and interest to proceed. Noted right wing authors, writers and organizations such as Tom Flanagan and the Frontier Centre for Public Policy have actively endorsed and promoted this option for First Nations.  Since this is presented as an “Optional” piece of legislation, likely all it will need is a few First Nations to champion it as evidence that there is Indigenous support.

The written material released by certain proponents, experts and other pundits as “truth” is in many ways confusing and misleading.  As an informed Indigenous citizen, I am concerned that there doesn’t appear to be any plans for a real dialogue on this issue before this ends up as a piece of legislation.   FNPOA proponents have presented aspects of their platform as follows:

1.  FNs under the First Nations Property Ownership Act can designate all or part of their existing reserve lands as “Fee Simple” (with a new type of as yet undefined First Nation underlying title). 

2.  Entrepreneurs can then use those lands as collateral or even sell them to anyone if they wish.

3.  Even if non native 3rd parties obtain the fee simple interest in those lands, the First Nation will retain the ability to pass laws and tax them.

4.  All we have is our abject poverty to lose

 Based on statements made by proponents, this is being proposed because:

  • We don’t own our own lands
  • The collective nature of reserve lands is a “Myth”
  • First Nations shouldn’t have to rely on a lottery ticket as a economic development strategy

 

 But, the proponents have also indicated:

 

 “We Don’t Own Our Own Land”

It is misinformation to say we don’t own our lands.  First and foremost, we know who we are as Original Peoples here in Canada.  That will never change.  This is the land of our ancestors, from the time of our beginning.  Second, we do have recognized property rights, albeit with significant shortcomings despite the presumption by the Crown of sole underlying title.  The highest court in Canada has confirmed that Aboriginal Title:    

  1. Existed before the assertion of colonial sovereignty and continues after.
  2. Is the opposite of “Fee Simple”, such that it cannot be owned by any individual.  This is a collective right to land held by all members of an Aboriginal Nation.
  3. Aboriginal Title is protected by the constitution of Canada.

Although untold numbers of our Peoples have fought at great effort and expense to establish protections within the common law for Indigenous Peoples, our lands and resources, the proponents have said they will rewrite the common law on Aboriginal title with FNPOA, wait...what?   There has been no clear articulation of the expected impact of FNPOA on the Crown’s fiduciary duty or impact on Indigenous Treaties.  Who amongst our representative aboriginal organizations have any mandate to spearhead this level of game changing work on First Nation’s behalf?

Our legal battles in Crown courts have not been simply about asserting “ownership” over the land, rather, it has been about recognition and protection for our own sense of “Indigenous ownership”.  For example, the principle that our land is not just a commodity to be exploited for short term individual financial gain, but rather, first and foremost, it is a collective benefit for the citizens of the community.  Or, the principle that the land and her resources belong to the children yet to be born.

I have a hard time believing that collective rights to land are just a myth foisted on unsuspecting Indigenous People by our elders here in Canada and around the world (See the UN Declaration on the Rights of Indigenous Peoples).  Yes, I can agree that there was a sense of ownership to territories and special areas by families and individuals in some areas before the arrival of Europeans, but I am also pretty sure there was no buying and selling of these lands in property markets, by realtors and/or repossession by lending authorities. 

The “Option” offered by FNPOA is the risk that third party interests may eventually take over, either through sale or repossession, reserve lands parcel by parcel.  The risk is that there will eventually be no reserve land available for First Nation citizens.

 Hey!  Is That Elvis?

I have been hearing so much rhetoric by outside “Experts” about how our First Nations in Canada are suffering and in poverty because we don’t have the same rights as non natives to land. If only we were more like them, if only we could just access this mystical thing called capital, things would magically change for the better.  That’s all we need, more debt.  Just never mind that our families are still feeling the effects of residential schools, or that land claims continue to move forward at a snail’s pace, or that capitalism has failed to care for the most needy and continues to exploit our lands without fear of consequence.  It seems that the allure of unproven “quick fix” is too intriguing, rather than discuss and directly address the more difficult and fundamental roots of poverty in First Nation Communities.  Elements of Governance and reconciliation like the necessary redistribution of wealth, or the effective resolution of treaty obligations, or the return of illegally obtained lands are once again pushed aside.    

Cloaked in the guise of “zero cost” and ending dependence on the Federal government through visions of wealth, FNPOA presents itself like a “Trojan Horse” whose goal appears to be to find a way to reduce, narrow or even eliminate any special exercise of aboriginal rights to land.   It is an expensive distraction in a time where other worthy issues like child welfare, disappearing languages, health and education aren’t getting enough attention.  Outsiders seem to feel entitled to look at our communities and demand that we “heal” ourselves.    

I am not saying First Nations should be frozen in time, stuck in the past, left behind, or left out of anything.  I just think we should be consistent about who we have presented ourselves to be, while still moving forward, protecting what little lands we have left from further erosion and keeping the emphasis on addressing outstanding land and resource issues.  I have dedicated my career to the protection and expansion of existing reserve land boundaries.  There isn’t any reason why we should have to sacrifice another square inch of our reserved lands for the sake of making a few more native millionaires as stated in the book ``Beyond the Indian Act``. It’s just unnecessary; there are other less risky and proven ways of creating wealth in communities.   A respected elder and former Chief recently said that First Nations should be able to buy lands and add them to the reserve base.  Now we are talking!  Why introduce an option that increases the possibility of permanent 3rd party occupation of remaining reserve lands?

We all know the Indian Act is archaic, insulting, oppressive, not conducive to business etc, etc.  More efforts should be made by Canada to support established, true indigenous led and proven methods of recognizing First Nations as Governments, protecting the integrity and collective nature of existing reserve lands and improving the living conditions on reserve for the majority of people.  At the very least, engage First Nations in a sincere and meaningful two way dialogue. 

The FNPOA conference in October, 2010 was clearly not intended for discussion or debate.  No microphones were on the floor and no time was allocated for feedback or questions by agenda, presenters, moderators or host.   Just 8 hours of back to back presentations.  Several attendees made requests to the moderator for an appropriate time for questions; it was made clear that there would be time at the end.  The end came and went, no time was provided for discussion, debate or questions.

Is FNPOA for My Community?

My own First Nation has a total population of about 2,000 and is located in northern New Brunswick.  We have a social assistance rate of about 75%-80%. If Tobique First Nation (TFN) were to designate all or even part of our lands as “Fee Simple”, who would get the right to “roll the dice” or simply just “cash in” by selling our lands?  (The failure rate of small business off reserve in Canada is 80%, in my reserve its almost 100%, I wonder what the statistics are like on other reserves?).  FNPOA promises, that even if those new businesses should fail and those reserve lands become owned by a bank or other 3rd party, the TFN will still be able to tax and make laws over those lands.  It’s really hard to pinpoint what part of this proposal is more problematic for me personally....  Is it the idea of narrowing the definition of aboriginal rights down to a government exercise of taxation and regulation?  Where are our members supposed to go if our lands are unavailable?  Are banks actually interested in lending against low value lands and houses?

Another problem with this approach is that the proponents of FNPOA assume that banks will be right there to lend money to our members because they have fee simple title that is now registered in a “Torrens” type registry system.  Having personally dealt with banks, I can assure you, they care more about your credit rating and your ability to pay back loans (job), they might even want to see a business plan.  Once again, it is unlikely that a bank is going to offer to lend money to any people on social assistance at TFN because they now have title to their lands.  So, if you can’t get a loan based on owning title, the only other option FNPOA offers, is to put your fee simple interest up for sale.  Land values anywhere are highly dependent on location; even off reserve in most parts of New Brunswick they aren’t great.

Unfortunately, the likely scenario isn’t that the majority of people from TFN are all of a sudden going to become successful entrepreneurs because they have been granted fee simple title to their lands.  Sure, some people who are already wealthy and/or well educated will likely benefit, but is FNPOA an option to attack the poor living conditions of the majority or is it just to make small minority richer?

At TFN we haven’t had a hard time starting businesses, there has just been a problem of keeping them going.  This has had little to do with the fact that we haven’t held title to the lands our ventures were built on, as many of them were located off reserve.  Ok so maybe TFN isn’t a good candidate for FNPOA...then who is? 

 

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