OTTAWA – The federal government said Tuesday it has no imminent plans to introduce legislation to allow First Nations people living on reserves to own their own land. But the government is known to be interested in exploring property rights with First Nations that are open to the discussion, and it’s possible a bill could result.

The idea of property ownership is one most Canadians take for granted, yet the concept is foreign to many members of the country’s 633 First Nations. Here’s a primer:

Q: Can members of First Nations own land?

A: Yes, like anyone else in Canada, members of First Nations can own land – as long as it’s off-reserve.

Under the Indian Act, reserve lands — which are meant to be used for the collective benefit of the community — are not “owned” by the First Nations, they are “held in trust” for bands by the Crown, and the Minister of Aboriginal Affairs gets the final word on any economic activity that occurs on reserves.

The Indian Act, which many people regard as archaic and even racist, says “no Indian is lawfully in possession of land in a reserve.”

Some bands are allowed to lease land to outsiders for large-scale economic or industrial development but individual ownership is limited to certificates of possession and leases on reserves, which all require ministerial approval.

In financial terms, property is not considered an asset because it belongs to the collective, so individual band members generally have a hard time getting mortgages, small business loans, or lines of credit from mainstream banks.

Q: If the federal government did pass a bill, who would be able to own reserve land?

A: The idea was first championed in 2009 by Clarence (Manny) Jules, former Chief of T’kemlups First Nation in Kamloops, B.C. and CEO of the First Nations Tax Commission. He wants the Crown to transfer title of reserve lands to First Nations who “opt in” to the plan. The move, which would require majority support of band members, would then allow the band to break up reserve lands into parcels, and allocate each plot to individual members.

Individual First Nations could also sell the land to non-aboriginal people without losing their jurisdiction over the land.

Jules’s proposal says “important safeguards” should be included in any proposed law to “preserve the First Nation character of the land.”

He told a parliamentary committee considering his proposal earlier this year that, if a law should pass, “investors would be able to make commitments (on reserve) with the same confidence that they do anywhere else. Businesses would be able to work at the same speed with First Nations, using this act as they do in any other market. First Nations people and their governments would be able to access credit on the same terms as others in Canada.”

Q: Who is opposed and why?

A: The majority of chiefs have come out against private property ownership because, according to Dr. Pam Palmater, a Mi’kmaw professor in the Indigenous Studies department at Ryerson University in Toronto, “it’s Canada interfering with First Nations jurisdiction over our lands and territories.”

Palmater, runner-up in last month’s Assembly of First Nations election for national chief, said the proposed law is unnecessary because banks and aboriginal financial institutions already provide loans to members of First Nations who want to start businesses, and many First Nations have become very successful using development tools already available under the Indian Act.

She said many chiefs see the proposal as a way for the federal government to subvert First Nations’ decision-making processes, in order to exploit resource-rich reserve land.

“The quickest way to get that Enbridge pipeline through our territory would be to divide up those lands into individual parcels because it would be a lot quicker to pick off individuals – especially the impoverished ones,” said Palmater. “And then, if one neighbour sees that an individual gets $100,000 for his property, then what’s someone else, a single mom, with three kids, living on welfare gonna do?”

Former Ontario Regional Chief, Angus Toulouse told a parliamentary committee in February that the law goes against the nature of the indigenous peoples’ relationship with the land. “Our cultures are based on a spiritual connection to the land. The commodification of land was at one time foreign to our way of thinking and certainly goes against our traditional way of thinking,” he said.

Toulouse told the committee Jules’ proposal would almost certainly bring up unforeseen legal questions. “Since these lands are protected mostly by treaty, with associated rights attached to the land, if the land is sold off or mortgaged to an outside party, will those rights continue to apply?”

The Assembly of First Nations chiefs passed a resolution in 2010 rejecting the notion of private property ownership on reserve. They were concerned that it allowed non-aboriginal people to own native land. They thought it would erode collective rights, impose a foreign conception of land value and negate their constitutionally protected land rights and treaty rights.

Q: Who favours the law, and why?

A: Proponents of private property ownership on reserve say it would allow First Nations to “move at the speed of business” instead of being subject to cumbersome government approval mechanisms.

“This legislation will mean that we will have the same property and land title systems on our land that the rest of Canada takes for granted,” says Jules. “It will mean we can obtain mortgages, build equity, finance businesses, and transfer wealth to our children, as do other Canadians. This is an opportunity to free the imaginations of our entrepreneurs.”

Tesmith(at) © Copyright (c) Postmedia News

Responses to "Should First Nations on reserve have property rights? Here’s a primer"

  1. iconmac says:

    I say that "owning" land is not the best idea here. Also, Loans are not the best idea either. The chiefs seem to know what is best!

  2. Anonymous says:

    i say no cause i person can become like mcdonlds wal.mart or some big company and kick the poor ppl off their land or if they can not pay taxes or rent they r out it is now if your poor you still have a word what to do ...if the land is in one person.s name ..they r the only voice ...u can come back to the land and work it always if u been away and you have a voice

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