by Anneke Smit and Gloria Huh
Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor, Canada. She is the author of The Property Rights of Refugees and Internally Displaced Persons(Routledge, forthcoming 2012) and co-editor of Private Property, Planning and the Public Interest (UBC, forthcoming 2013). Gloria Huh will graduate in 2012 from the JD program at the Faculty of Law, University of Windsor. She has been involved in the promotion of housing rights for low-income individuals and families with the Hamilton Housing Help Centre and Legal Assistance of Windsor.
In a recent TerraNullius post, Rhodri Williams expressed optimism over Aboriginal participation in Canadian legislative processes, lauding Aboriginal leaders for engaging with the larger Canadian political system to better the position of their people. Certainly it is positive that federal and provincial governments are engaged on an ongoing basis in land claims negotiations. Further, a steady stream of judicial decisions (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53,  3 SCR 103.) continues to refine the nature of the relationship between the Canadian government and the country’s Aboriginal peoples.
Not all is well however. Tensions on the subjects of housing and property rights on native reserves as between the federal government and native leaders are ongoing. Hundreds of land claims remain unsettled, which has sometimes resulted in violent clashes.
Most recently the story of the wretched housing conditions on the Attawapiskat reserve in northern Ontario broke in late November 2011 and monopolized domestic Canadian news sources for weeks, reopening debate about Canada’s treatment of its aboriginal peoples. Commentary has been voluminous and has focussed attention not only on Attawapiskat but on housing and property rights (and socio-economic conditions more generally) on reserves across Canada. The Conservative government of Prime Minister Stephen Harper has been roundly criticized for its failure to address the Attawapiskat crisis earlier while negotiations between band leaders and government officials have been riddled with accusations of misinformation and miscommunication.
This media attention has provided an opportunity for advocates of a new approach to private property rights on reserves in Canada to gain public and government support for their position. To date aboriginal title in Canada has been defined as a collective right (see for example the 1997 Supreme Court of Canada decision in Delgamuukw). While the Indian Act allows for individual possession of reserve land, no private ownership of reserve lands has been permitted. The proposed Act would change that.
The Nisga’a of British Columbia made history in 2009 when the band’s legislature passed a law allowing private ownership of band lands as part of their self-governance arrangement. While this process is still in its early stages it is moving ahead both in effecting necessary legislative amendments and conducting public education sessions in affected communities.
While the Nisga’a development was one initiated at the band government level, some analysts in Canada have been advocating for such moves on a larger scale for some time. University of Calgary political scientist Tom Flanagan, along with Manny Jules, head of the First Nations Tax Commission have long argued that private property ownership should be available for reserve lands. Their arguments are classic de Soto, focussed on improving economic power through the exercise of private property rights. They are now leading the push for a federal government-led legislative reform which would allow private ownership on reserves across the country. The proposal was front-page news in Canada in mid- December and parliamentary hearings in 2012 will consider the proposed First Nations Property Ownership Act.
To be clear there is strong opposition to the proposals from a number of factions including many aboriginal leaders. A similar proposal was soundly defeated by aboriginal chiefs in 2010 and it is not likely that the appetite of aboriginal leaders for such proposals will have changed, even in the wake of Attawapiskat. But given the interest of the majority Conservative government, it is certain that Canadians will see a vigorous debate on aboriginal property ownership at the very least.