First Nations are in a period of nation-building or rebuilding, taking back control of our lives after years of colonial rule and being governed as wards of the state by Canada under the Indian Act. Our nations are considering how they govern themselves (their core institutions of government) and what they govern (their jurisdictions). Central to this discussion is determining an appropriate system of land tenure that reflects a particular nation’s culture and traditions while also supporting the development of an economy. This necessarily includes a conversation about what types of legal interests in land can be created, who can hold them and how they are recorded. Every nation that has gone through the process of moving beyond the Indian Act has undertaken this work – work required to translate hard-fought-for aboriginal rights into practical and real change on the ground in each of our communities.
As a result of our nations’ governance-rebuilding work, there are already many different types of land-tenure systems on First Nation lands; systems that support property rights and, to use the language of economist Hernando de Soto, “unlock the capital” of First Nation lands.
These systems have been developed carefully in order to ensure that collective interests in the land remain so our people have a place they can live and practise our respective cultures and maintain “community.” And to ensure that the primary economic gain from the capital created in our land goes to our citizens (either collectively through our governments or to individuals as property owners) and not to third parties and potential speculators.
The land tenure discussion in our communities has, therefore, not been just about what is needed to make the land more marketable or provide security of tenure, but how to do so while maintaining a community and collective rights. When it comes to property systems, both domestically on or off reserve, and internationally, there are, of course, many ways to govern.
Recently, there has been talk of a proposed federal First Nations Property Ownership Act (FNPOA), which reflects a particular ideological approach to land ownership. The manner in which this proposed bill has been promoted suggests there is no property ownership on First Nation lands today. Also, that creating fee simple interests – where, we assume, title would be raised through a new national body and possibly held by non-Indians – is the best solution. The potential introduction of this bill, which we also understand would be optional for each nation, is creating much debate.
Debate is good. However, it is important that the debate does not take away or distract from the important work that is already well under way in our nations to reform land management, or take away from the more fundamental work of nation rebuilding. Determining a land tenure system, while important, is only one part of the solution. Each of our nations needs to go through its own process of deconstructing the colonial past, and the solutions certainly cannot be imposed or dictated by the Crown.
It is not clear at this time which of the more than 600 nations support the approach taken in the FNPOA. The Assembly of First Nations, through a chiefs’ resolution, has expressed opposition to the FNPOA. However, as with any initiative, if nations want to pursue a particular option, that is their prerogative, but it cannot be imposed on others. Further, as there are limited federal resources to support moving beyond the Indian Act, it is important that resources are directed to initiatives where there is strong support and the best chance of success. For legitimate and well-thought-out policy reasons, most of our nations do not support or see the need for the FNPOA.
But don’t confuse this with thinking they do not support change and moving away from the Indian Act. Rather, First Nations are advancing innovative and sustainable approaches that will unlock capital, create partnerships and protect their lands and resources for future generations consistent with their rights and responsibilities – on their own terms. And it means the approach and ideological underpinnings of the FNPOA is simply not for them.
Jody Wilson-Raybould is the Assembly of First Nations’ Regional Chief of British Columbia.