Tag Archives: Canada

Proposals to allow private ownership of First Nations’ land spur debate in Canada

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, [2010] 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.

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We are here! post-Thanksgiving musings on minority conflicts and political participation

by Rhodri C. Williams

Just like last year, I spent the previous week celebrating Thanksgiving with relatives in northern Virginia and, just like last year, the curious nature of the holiday got me thinking about all the people that used to live there and may now find themselves west of the Mississippi in the best case. This year I found some inspiration in both the Economist I brought on the plane and the Dr. Seuss book I read my daughter. You, gentle reader, can be the judge of whether it all adds up or I just put a little too much gravy on the stuffing.

The Economist got me thinking with an apparently unconscious pairing of articles on natural resource conflicts in the Americas  (hurry up if you are interested, both are sliding fast toward the paywall). The first focuses on Peru, where newly anointed President Ollanta Humala has found his newly minted ministry of ‘development and social inclusion’ outflanked by a brushfire of protest movements against large-scale gold mining concerns in the highlands.

The article implies that by passing new legislation requiring consultation with local indigenous peoples on extractive projects, Mr. Humala has opened a floodgate of dissent stifled under previous, more business-friendly regimes. However, as in nearby Bolivia, the real political and economic power that flows from meaningful  consultation also appears to have highlighted unresolved tensions between indigenous peoples that may range from identity politics to competing political and economic agendas:

The native-consultation law could … prove perilous for Mr Humala. By January the government must decide which groups should be consulted, and how recommendations will be made. Formally, the process only applies to indigenous groups, prompting squabbling over who can use that label. “The situation in Cajamarca is heating up and could boil over if people feel excluded,” says (Cajamarca president Gregorio) Santos.

The second article focuses on Canada, where the socio-economic status of the  country’s ‘First Nations’ remains far below the national average and natural resources exploitation represent a grave threat to traditional ways of life. Recently, First Nations have apparently responded by resisting the historic pattern of woefully low representation in the national government bodies that are dominated by the majority but take many of the important decisions regarding the fate of minorities:

“Aboriginal peoples realise that decisions regarding their future, their territories, their resources are being made in Quebec City, Montreal, Ottawa, and perhaps in Shanghai and New York,” says (Cree First Nation parliamentarian Romeo) Saganash. “So they understand they have to participate in the democratic institutions of this country.”

Without either minimizing or exaggerating the undoubted historical, socio-economic and cultural differences that complicate any attempt to compare Peru and Canada, I found the second article encouraging. ‘Consult’ and ‘participate’ are both transitive verbs but in the former case (consultation), indigenous peoples are the object, the recipient. Participation, on the other hand, is something that peoples – and people – do as active subjects. As with Mr. Saganash, who aspires to be Canada’s first aboriginal prime minister, you take it to the majority on the ‘best defense is a good offense’ theory.

So where does Theodor Geisel come into the picture? Continue reading