First Nations Property Rights
Thursday, August 16, 2012
In a recent Postmedia report on property rights for First Nations citizens, the writer, Teresa Smith, provided a “Frequently Asked Questions” sketch of the issues surrounding this contentious concept. It was an interesting piece that helped clarify some of the confusion that exists for non-natives in their beliefs about aboriginal housing.
This is a timely article, coming as it does following the ruling of the Federal Court which found the government erred in sending a third party manager to Attawapiskat. The court found the issue the band was facing wasn’t mismanagement on their part, but lack of promised resources on the government’s part. The able Attawapiskat leadership should be admired for showing such courage in standing up to the finger-pointing government officials who will now have some serious explaining to do. Not that heads will roll over it in the Department of Aboriginal Affairs, of course. Why should they? Mismanagement, in the form of sub-standard housing, unsafe water, inadequate educational funding and general stewardship that lurches from willfully destructive to mere incompetency, has been the norm for centuries. The Indian Act, originally brought into force in 1876, (when the government, it must be assumed, knew natives weren’t actually Indians) has been reviled as patronizing, dysfunctional and even racist. Can we pin 136 years of abuse on a few currently serving civil servants and fire their carcasses out the office door to satisfy the blood maddened media? That hardly seems fair.
What’s even less fair, however, is the culture of dependency that the Indian Act imposes on its subjects.
Due to the obscene length of time natives have had to suffer with intolerable living conditions, it is an issue you can pin on both the Liberals and the Conservatives. To his credit, Prime Minister Stephen Harper has made some baby steps in increasing cooperation and lowering the rhetoric with the Assembly of First Nations over the years. It’s possible however, that a lot of the cache of cooperation may have been compromised over how the government handled the optics of the Attawapiskat affair. Due to the ham-handed approach by Aboriginal Affairs officials, around coolers in office towers in the off-reserve world, there was, no doubt, the usual griping when the Attawapiskat poop hit the media fan.
“Why don’t they just build their own houses?” “If I have substandard housing, it’s my fault. If natives have substandard housing, it’s the government’s fault? What the puff, man?” “Why don’t they just sell their land and move?”
What many non-natives do not understand is that under current law, First Nation land is Crown land. It is held in trust by the government for the benefit of the descendants of the 633 Native Bands that signed those original treaties. Those treaties allowed for communally held lands, as was the aboriginal custom.
What this communal property clause does, however, is make it challenging for natives to build their own houses on native land. Banks are loathe to approve mortgages for land the homeowner doesn’t actually own. Another major issue is that because of the involvement of the government in so many aspects of native life, every initiative that occurs on reserves, happens at the speed of bureaucracy. This would preclude any aboriginal enterprise being involved in any business requiring “nimbleness”. Governments are many things, but nimble, they ain’t.
There’s a third aspect to the communal property concept and that is the tendency for humans to take more pride in what they own individually than what they own collectively. The buy-in isn’t as great and so the motivation to maintain community property isn’t nearly as strong. The dwindling numbers of Communities in Bloom members can certainly attest to that. As a result of this tendency, property isn’t maintained to the same standard it would be, if individuals were allowed to actually own their own homes.
The problem seems simple to fix; just change the Indian Act (and update the name this time). Eliminate clauses disallowing individual ownership. As simple as this appears, it is not supported by most band leaders, and for good reason.
They fear losing communal property rights will ultimately lead to loss of their culture. As native land is sold off, the culture of the community that remains will become diluted until it disappears. It wouldn’t take many individuals selling their pieces off to compromise the way of life of those who wish to continue with the old ways. The promise of that lifestyle continuation was enshrined in treaties who recognized the peril of such a specter.
Many natives also see this as a way to conquer and divide the First Nations bands. It’s much easier to intimidate, bribe or trick individuals out of their land for, oh, I don’t know, a pipeline to Kitimat, perhaps, than to try these ploys on an entire band united.
Legal questions also need to be addressed concerning the inherent rights that have historically been tied to the land. Will those rights be lost, follow an individual or be sold along with the property? This is an important issue to be clarified before any changes could even be considered.
The Aboriginal community has supporters of private property rights with well thought out opinions, too, but they are a minority.
Why do property rights for aboriginals matter to non-natives? There are a number of reasons.
The signatories to the treaties way back when understood that if aboriginal culture is to be preserved, communal property is the only option. Unfortunately, it creates as many issues as it solves.
So, we have a situation where the status quo is problematic and the solution is equally problematic. A lack of trust in the motives of the federal government (probably well placed) add to the mix and may explain why this issue has been around as long as it has with no resolution in sight. The least we can do is understand the many facets of the issue and resist finger pointing when the next Attawapiskat-type incident occurs.
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