The federal Conservatives’ reported intention to introduce a bill to enable individual aboriginals living on a reserve to acquire and own land on that reserve, if the first nation in question opts in to such a regime, is a welcome step forward.
Not many native leaders are now in favour of such a change, but if a few communities were to thrive as a result of the new legislation, opinion would probably shift.
The Conservatives’ election platform of 2006 promised to “support the development of individual property ownership of reserves, to encourage lending for private housing and business.” Their platforms in 2008 and 2011 were less clear. But after a year of majority government, they seem poised to act on a six-year-old plank.
There may be clues to the contents of the future bill in a book published in 2010, Beyond the Indian Act: Restoring Aboriginal Property Rights, by Tom Flanagan (a political science professor who was the Conservatives’ campaign manager in 2004), Christopher Alcantara and André Le Dressay. The authors propose that communities could opt in to a property regime in which individual band members could acquire “fee simple” – that is, basic, normal land ownership, including the right to sell and to mortgage the land.
They also propose that each first-nations community would have and keep an underlying right to the land analogous to the title to which all land in Canada is now subject, held either by the Crown in right of a province or – in the territories – by the Crown in right of Canada: in other words, the provincial and federal governments.
The crux of the issue may be that many first nations would still want to limit a band member’s sale to other members, which is usually quite a small market. That would also give pause to mortgage lenders, in case of a default.
Long leaseholds may yet turn out to be a more broadly acceptable alternative.
For all its considerable merits, Beyond the Indian Act does not include a draft bill. The devil may yet be in the details. In the end, a conclusion about such proposals can be drawn only after legislation has been actually tabled in the House of Commons. That prospect in itself is real progress.
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