PRIVATE PROPERTY OWNERSHIP ON RESERVE: A STRANGE CONCEPT

 I always wonder why the colonialist minded governments think their way of doing things is the right way and the only way. Imposing their way on us has been in existence for a long time and the residential school system, the White Paper and the Indian Act are examples of this way of thinking. They want First Nations to be exactly like them. Well, we are not and as long as there is a fight within us, we will resist becoming duplicates of the settler governments.

The idea of individual property rights is very much based in Eurocentric laws and views where the individual has all the rights. The concept of collective rights of a peoples is a foreign concept to governments and not one they are comfortable with.The idea of collective rights is one that has been endorsed by the Supreme Court of Canada. The courts have said aboriginal rights belongs to the collective Nation and not to the individual members. The right to land is no different and collective rights to lands is one First Nations understand.

Not that the Indian Act is the solution but for now  it guarantees that reserve lands will always be reserve lands and held for the members of a particular First Nation. The land is still held by “Her Majesty” for the use and benefit of the members which of course is not an acceptable premise.

I have to wonder how this private property system would work. I think of reserves where there are a small number of members who own large tracts of land and there is little land left for the rest of the members. If those members with large tracts of land own the lands privately, what is left for the rest of the members? How can the remaining land if any, be divided amongst all members? How do you ensure fairness and equity to all members if you are allotting privately held lands?

I also wonder in cases where the size of reserve lands is very small. Many reserves on the coast of BC are small and there is no land left for more homes. If all the land is privatized, what does that leave members who have no land and no chance of getting land? Their only opportunity to get land would be to purchase it from another member if they have the financial ability to do so. Or if the there is an addition to reserve which now can take ten plus years to accomplish.

I hear a lot about the benefits of privatization of land. One of those benefits is that it will allow members to gain equity in their homes and have an asset like all other Canadians who own their homes do. Let’s look at that more closely. How many of First Nations communities have a large percentage of their members either living in poverty and/or unemployed? How will those members be able to purchase land or get a mortgage to buy land and a house based on their income? How will private held lands help the poor? How will it address the homeless and the overcrowded situations? How does it help with getting clean drinking water and services to every home? Do we then tax people for these services? Tax people who right now have income below the average household income in BC? Does it only widen the gap between those that have and those that do not? Will reserve land be able to be sold to non-members and if not, the value of the land will never compare to off reserve and what does that profit the person? If land can be sold to non-members, what happens when there are few members left of the reserve? How can you govern a people who don’t live in a collective and what benefit do those members have in the remaining lands if title no longer belongs to the collective First Nation but to the individual? There are many questions that must be answered and looked at before any legislation is looked at.

Systems on reserves vary across this country so it is hard to look at this globally as some First Nations provide homes to members as they can afford it or provide a nice size grant that the member can use to leverage a mortgage. Others provide social homes, homes that are built by the First Nation with a mortgage, and the mortgage is paid off with the rental moneys from the member living in the home. When the member does not make the rent payment, the Chief and Council must make the payment and often leads to First Nations going into third party management because they cannot sustain making all the payments. Guaranteed payments for rent come from those on social assistance. Depending on the policy of the First Nation, those homes can remain rental homes or they can be transferred to the member to own after the mortgage is paid out. This means that members who have low incomes can own their homes. The problem then becomes one of being able to afford the necessary renovations and repairs. A tough cycle unless the community sets aside infrastructure dollars specifically for renovations and repairs.

Historically, financing of homes on reserves was solely done by Canadian Mortgage and Housing Corporation(CMHC). Then it was financial institutions set up by First Nations and approved by the Federal Government like All Nations Trust Company (ANTCO). First Nations had to get their loans from them to build homes. For some years now, traditional banks like Royal Bank of Canada, Bank of Montreal and others now provide for mortgages on reserve for individuals building their own homes. Financial institutions have become innovative and have helped to build homes on reserve with different kinds of programs despite the limitations of the Indian Act.

I can’t help but think of the years of treaty negotiations in BC with respect to how land will be held by the First Nation post Final Agreements. Those that have concluded treaties have settled for “fee simple plus” lands. That is you hold land like everyone else does in fee simple but with a few differences like owning the subsurface and people cannot take adverse possession of your lands. Most First Nations have not entered into treaty because they will not accept fee simple plus title. They want to own their lands in a way that retains aboriginal title and call them s. 35 (of the Constitution) Lands or s. 91(24) lands (of the Constitution Act, 1867) that are protected under the constitution. The federal government has rejected all of the options put forward by First Nations at the treaty table and prefers to get rid of any fiduciary obligations they may have under reserve lands, s. 35 lands or s. 91(24) lands. Fee simple/private property has been their mandate for many years and now we see it surfacing in proposed legislation.

First Nations in treaty want to be able to hold the land within their jurisdiction, and then they will devise a system that allows for members to hold lands. That is what self-government is about, finding the solutions that work for your own government with all the members in agreement with the process and result. Having another imposed federal law providing for private property structure on reserve can only create more problems on reserve that will exacerbate the living situation on reserve. Even if is an opt in legislation that may be used be a few First Nation, it sets a precedent for what is possible and one you cannot get the federal government to get away from. It also provides a mechanism for the federal government to tell First Nations to utilize instead of allowing the First Nation the ability to negotiate out of the Indian Act.

The one solution that was put in place was the First Nations Land Management Act. laws-lois.justice.gc.ca/PDF/F-11.8.pdf The FNLMA does not change the title to reserves or how land is held, but it allows the First Nations to manage the lands without the bureaucracy of AANDC. It is up to the First Nation in their land code to determine the use, occupancy and terms of how land is allotted to members and non members and accountability to the members on how land is used. 37 First Nations in Canada have adopted Land Codes and an additional 25 First Nations are in the developmental stages. This legislation is opt in and those First Nations who have found it as a useful mechanism have found successes. This is only 10% of the First Nations in Canada so this truly is not a comprehensive solution for all First Nations and other mechanisms need to be found.

The Federal Government in the Crown First Nation gathering told the Chiefs there would not be a whole scale getting rid of the Indian Act but would do individual Acts to address specific issues. We are seeing this with the promise to bring private property legislation this fall and an Education Act with a one size fits all approach. First Nations issues are far too complex and different to have one solution for all. My hope is that the First Nations leadership in this country will stand up to the Federal Government and thwart them in their attempts to be imposing solutions on us that don’t work, solutions that do not come from the First Nations themselves. Solutions must come from a collaborative community based approach, and not just come from one person such as Manny Jules. First Nations want solutions and workable mechanisms to the issues of housing, infrastructure but until the solutions come from us who live and understand the situation, they will never truly work. I hope the Federal Government has the wisdom to work with First Nations and not just impose legislation based on the opinions of a few.

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