First Nations Band Land First Considerations
Privatization of reserves promoted by liberalization gurus
November 1, 2010
Peruvian economist and World Bank poster child Hernando de Soto Polar visited Vancouver in October to speak in favour of the establishment of individual property ownership (“fee simple”) on First Nations Reserves in Canada.
The First Nations Property Ownership (FNPO) conference — hosted by the First Nations Tax Commission — paired de Soto with a select roster of indigenous leaders, lawyers, economists, and scholars from across British Columbia and Canada to promote a proposal that would allow fee-simple title on reserves.
The proposal aims to give individuals living on reserve access to the same legal private property rights that exists in the rest of the country, as opposed to the collective title held by bands. Currently, collective title is bound by section 91(24) of the Constitution Act, 1867 (a guiding provision of the Indian Act), which allocates legislative jurisdiction over “Indians and lands reserved for the Indians” to the federal government, constitutionally protecting existing indigenous title.
“What [the proposal is] doing is putting a damper on 91(24) lands,” said Harley Chingee, a member of the First Nations Lands Advisory Board. “There’s no internal controls once you take 91(24) out of it. Because then the provinces — and Canada, for that matter — can have control.”
The proposal is championed by conference organizer C.T. (Manny) Jules, chief commissioner of the First Nation Tax Commission, former chief of the Kamloops Indian Band, and one of Canada’s foremost proponents of private property ownership on reserves.
The conference came at the crest of an increasingly aggressive effort throughout recent months to generate support for the controversial proposal — a charge led by Jules alongside conservative political scientist Tom Flanagan. Flanagan — a former campaign manager for Stephen Harper — has published a number of contentious books and articles prescribing solutions to First Nations economic development and land management. He most recently co-authored Beyond the Indian Act, which argues for federal legislation that would make way for fee simple on reserves.
In response to this effort, a growing group of indigenous chiefs and community members have been speaking out against the Jules/Flanagan proposal, making the argument that fee-simple property ownership will leave collective Indigenous Title and Rights and Reserve Lands — which are affirmed in section 35 of the Constitution Act, 1982 — vulnerable to encroachment by developers, corporate interests, and Federal and Provincial control. Chingee has been open in his rejection of the fee-simple proposal, as has
Arthur Manuel, spokesman for the Indigenous Network on Economies and Trade.
De Soto, president of the Institute for Liberty and Democracy (ILD), is notorious for advocating fee-simple property ownership and market-led agrarian reform among Latin America’s campesinos. His ideas are promoted by international financial institutions like the World Bank, as well as the U.S. international development organization USAID, who use his theory to back their own market-driven development projects throughout Latin America.
He’s also been assailed with criticism from popular and grassroots organizations, such as Via Campesina — a global peasant movement — which maintains that the most common ramification of de Soto’s economic agenda is dispossession and deeper economic stratification.
Like de Soto’s proposal for Latin America, which aims to convert latent, or “dead” assets into market capital, Jules and Flanagan aim to transform collective rights into individual titles, which can be openly traded on the market. In Canada, collective land title is understood to be the inherent right of indigenous peoples.
In a letter against the fee-simple proposal published in the First Nations Strategic Bulletin, Manuel asserts the power and protection of collective title. “No single individual can give up or extinguish our Aboriginal Title and Indigenous Rights. It would be suicide or extinguishment for our future generations to accept Fee Simple in exchange for our collective Title,” he wrote.
Chingee’s response to the proposal warns of the damaging impacts of privatizing reserve land. “The change would undermine signed Treaties across Canada; undermine our political autonomy; restrict our creativity and innovation; and place us in a dangerous position where any short-term financial difficulty may result in the wholesale liquidation of our reserve lands, or the creation of a patchwork quilt of reserve lands like Oka,” he wrote.
The fee-simple proposal has come under further fire for implying that individual property ownership is the sole recourse for economic prosperity on reserves. De Soto’s frequent reference to reserve lands as “dead capital” was wholeheartedly adopted by the conference organizers, who littered promotional material with the promise to unleash this un-tapped asset.
A recent article by Dan Cayo in the Vancouver Sun explains that a common approach taken by individuals on reserve is to find substitutes for individual property ownership, such as long-term leasing and “certificates of possession,” which are enough to provide sufficient collateral to qualify for business loans.
“Certainly you don’t need fee-simple standards to prosper. People have an illusion that’s totally false,” says Chingee, citing examples of First Nations who have achieved economic success without fee-simple ownership. “You just have to look at Westbank First Nation out in Kelowna. And there’s countless others, like the Squamish Nation in Vancouver, for example, Macleod Lake Indian Band, up north of Prince George, that are prosperous 91(24) lands. And I think there’s a lot more potential throughout Canada, it’s just people haven’t realized their potential.”
Ironically, it was Westbank’s economic success that the fee-simple advocates tried to use to their advantage, adding former Chief Ron Derrickson’s name to the conference’s speaker’s list and promotional material without his consent or support.
Derrickson — known as one of the most successful indigenous developers in the country — was alerted to this name-borrowing via Manuel. Once alerted, Derrickson voiced his disproval of the fee-simple proposal and his name was removed from the list.
The FNPO website uses the Switzemalph 7 reserve near Salmon Arm as an example of a community with untapped development potential.
“Actually if you cut out the environmentally sensitive areas you come up with a picture that has a lot of development,” says Dave Nordquist from Adams Lake, refuting the FNPO’s claims about Switzemalph 7. The environmentally sensitive area is part of the Salmon River Delta, an area unsuitable for any land development.
Though Tom Flanagan is not a listed speaker at the conference, and is rarely named on the FNPO website, his presence is discernable. The cover image from Beyond the Indian Act graces the front page of the site, and his co-author, André Le Dressay, was a speaker during the Vancouver conference.
Beyond the Indian Act bears the subtitle “Restoring Aboriginal Property Rights,” implying that fee-simple property ownership is a traditional right among Indigenous people in Canada. This message is reiterated in the forward and in a recent Globe and Mail editorial — both written by Jules, who evokes early indigenous civilizations across the Americas to make the case that individual property rights and free market trade are fundamental to indigenous peoples, and have been obscured and impeded upon by colonial legislation.
Nevertheless, the fee-simple proposal also names the Torrens title system as a source of inspiration — a colonial model which hinges on the creation of an individual title registry. Its name pays tribute Sir Robert Torrens, a colonial premier who introduced the title system to the state of South Australia in the mid-19th century.
Though proponents claim that the right to fee-simple title is inherent, the proposal is curiously lacking in popular indigenous endorsement. Whether or not de Soto will be able to drum up support for the proposal remains to be seen.
Emma Feltes is a writer, researcher and activist based in Halifax and the southern interior of British Columbia. Her work centres on First Nations and state relations, cultural heritage and intellectual property, and urban issues.
This article first appeared in the Vancouver Media Co-op.