Social Policy in Ontario

Let’s give the First Nations homes of their own

Posted on March 27, 2010 in Equality Debates

— Authors: André LeDressay, Christopher Alcantara, Tom Flanagan

NationalPost.com – Opinions/Full Comment
Posted: March 27, 2010.  Tom Flanagan, André LeDressay, Christopher Alcantara

An old and recurrent fantasy about American aboriginal peoples is that they had no conception of property. Christopher Columbus got the impression that “in that which one had, all took a share, especially of eatable things.” The Baron de La Hontan, who had served as a soldier and explorer in the New World, wrote in 1703 in New Voyages to North America: “The Savages are utter Strangers to distinctions of property, for what belongs to one is equally another’s.”

The same misconception cropped up in our own day in the speech allegedly given by Chief Seattle in 1854 (but actually composed by a Texas writer in 1971), popularized in a made-for-TV movie the following year, and quoted with approval by U.S. Vice-President Al Gore in his environmentalist book Earth in the Balance. Seattle is made to say: “The earth does not belong to man; man belongs to the earth,” and “the President in Washington sends word that he wishes to buy our land. Buy our land! But how can you buy or sell the sky? The land?” It’s all a modern invention; none of it is the words of Chief Seattle.

Aboriginal advocates often portray Indians as natural collectivists, indeed proto-communists. According to Vine Deloria, Jr, Indians have a “tribal-communal way of life, devoid of economic competition … While the rest of America is devoted to private property, Indians prefer to hold their lands in tribal estate, sharing the resources in common.” Former University of Colorado professor Ward Churchill writes that “the nature of the indigenist impulse is essentially socialist, insofar as socialism — or what Karl Marx described as ‘primitive communism’ — was and remains the primary mode of indigenous social organization in the Americas.”

Though frequently expressed, such conceptions of American Indians as lacking institutions of private property are simply wrong. The historical and ethnographic literature shows that Indians were abundantly familiar with property, albeit in forms unfamiliar to European explorers and conquerors, for whom rejection of the reality of Indian property was often a prelude to expropriation with little or no compensation. It is both ironic and tragic that this originally European conception of Indians as natural communists has now been accepted by many aboriginal leaders and thinkers, and become a barrier to native participation in the modern economy. The reality is that the original inhabitants of the Americas had institutions of property before European contact. Of course, they modified those institutions as European contact changed the circumstances in which they lived, but they were never without their own conceptions of property rights.

The inhabitants of the Americas had markets long before any contact with European explorers and settlers. Recognizing the benefits of exchange, they established far-flung networks for trading corn, pipestone, oolichan grease, and many other products. They exploited competitive advantages by specializing, e.g., the Secwepemc in salmon fishing, the Woodland Cree in pemmican, the Nootka in whaling, and the Kwakiutl in woodworking and iron and metal extraction. Some nations, such as the Maya and Norte Chico, built trade-enabling infrastructure such as roads and marketplaces. In addition, commerce-friendly social institutions also emerged, such as the Chinook trading language, used among precontact First Nations from Alaska to California, and the Aztec system of commercial law. And, there were many systems of property rights.

Markets, however, are largely absent on First Nations lands now. It is not that there are no competitive advantages; indeed, many First Nations have competitive advantages related to location, natural resources, and labour. But the rules, powers, and administration necessary to establish secure property ownership and infrastructure to facilitate trade are not in place. The result is that trade is too expensive and markets fail on First Nations lands.

Most homeowners in Canada are familiar with indefeasible or fee-simple property rights. In seven of the 10 provinces, Canadian landowners enjoy some version of the Torrens system of land titles, which includes insurance to secure property ownership. Canadians’ use of their property is governed by local rules such as zoning and building codes, but the chronological term of fee-simple property ownership is unlimited. Fee-simple ownership must coexist with the underlying title that remains with the government, symbolized by the Crown in the British tradition. It is in virtue of its underlying title that the government can regulate land use, impose property taxes, and reclaim ownership of land if such taxes are not paid.

Certainty with respect to both individual and underlying property rights is required for markets to work effectively. In Canada, it is mainly provincial and local governments that provide the rules to clarify property rights in support of markets. Provincial governments provide the legal and administrative framework to protect and enforce property ownership. Local governments provide local service quality, security, and reliable information; make rules for land development and zoning; and build the public infrastructure, such as roads and utilities, necessary to facilitate trade.

When these jurisdictions are not recognized or there are insufficient resources to exercise them, the result is high transaction costs and market failure, as has happened to First Nations. They do not have the provincial type of powers necessary to protect and enforce marketable property rights on their lands.

We are proposing that the federal government pass a First Nations Property Ownership Act so that First Nations across Canada can have clear underlying and individual property ownership, should they so choose.

The benefits of a First Nations property ownership would be substantial. In combination with existing federal legislation, it would fill in most of the gaps in the First Nations investment climate and dramatically reduce transaction costs. With a stroke of a pen, First Nations land values could rise to those prevailing in the rest of Canada. It would recognize underlying First Nations title, and thus formally bring First Nations governments into the federation. It could increase home equity for homeowners on First Nations lands so they can be more entrepreneurial, plan for their retirement, and bequeath their wealth just like other Canadians. It would help resolve issues relating to matrimonial real property and estates. It would provide market incentives for improved financial management and for completing self-government and land-claim negotiations.

The legislation would be completely optional for First Nations. A First Nation could choose to participate through an acceptable demonstration of community support similar to passing a land or a self-government or treaty agreement. Moreover, the First Nation would determine application of the new title system to its lands. Some First Nations will limit their land-title system to a specific area and may even limit tenure to leasehold title. Others may choose to apply their land-title system to all their lands and enable comprehensive fee-simple ownership. The legislation would facilitate either of these choices as well as an infinite number of choices in between.

Market economies are built on the exchange of property rights. The market cannot function without property rights that are secure, easily defined, enforced, and traded. This is especially true with respect to land. Land is the most fundamental type of property, and therefore property rights in land are the bedrock of the market economy. The First Nations Property Ownership Act will allow First Nations to create the level of prosperity that other Canadians take for granted.

Excerpted from Beyond the Indian Act: Restoring Aboriginal Property Rights, by Tom Flanagan, Christopher Alcantara, and André Le Dressay. Foreword by C.T. (Manny) Jules. Published by McGill-Queen’s University Press.

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Tags: Indigenous, privatization

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