Larissa Katz
In the wake of the Attawapiskat furor, the Harper government is offering what it claims is a tool for stimulating economic activity and generating wealth on reserves: the First Nations Property Ownership Initiative.
The argument for FNPO is that first nations people are at an economic disadvantage because property on reserves is held either collectively or privately but with too many strings attached. There would be more economic development on reserves if aboriginal people had ready access to the sort of "no strings attached" private property that most people have.
But the situation's a lot more complicated. The arguments proponents marshal in favour of FNPO don't support the program they're proposing. They point to the economic lift some developing countries have experienced after formalizing "informal" squatters' rights: Owners invest more in their property, and credit markets open up when their property rights are secure. But this isn't what FNPO offers. First nations people already have formal private property rights; it's just that they hold land by way of certificates of possession or leases instead of "no strings attached" ownership. So the advantages of formalization aren't on the table.
The real advantage of "no strings attached" ownership in reserve lands (which FNPO offers) is that it will attract non-aboriginal investors who may be reluctant to subject themselves to regulation by first nations. So it's probably true that FNPO will draw some new outside investors. This, however, will come at a significant cost to the ability of first nations to govern themselves.
First, "no strings attached" ownership deprives aboriginal people of one of the few tools they have for self-government. The long-term lease operates as a kind of regulatory and land-planning device. When aboriginal peoples grant leases to their reserve lands, they're able to impose obligations of good management directly on leaseholders. This option is not available with "no strings attached" ownership.
Second, because leases are always time-limited, they preserve a land base for first nations for when their full powers of self-government are recognized. In the U.S., the Dawes Act of 1887 privatized property on reserves. In many places, reserve lands were bought up by non-aboriginal owners, leaving tribes such as the Oneida Nation without a significant land base. Today, the Oneida are still struggling to reassemble their territory, and antagonizing many of the non-natives living in their midst.
FNPO proponents may point to the voluntary nature of the program. It doesn't force first nations to do anything; it simply offers a quick and easy way to create "no strings attached" ownership on reserves. True. But what's most important is what's not on offer: serious efforts to resolve questions of aboriginal self-government. Introducing "no strings attached" private property before self-government issues are settled is likely to create new "facts on the ground" and new political challenges for future negotiations.
If private property rights are important for economic growth on reserves, as the Harper government claims, then it's all that much more important to agree now on aboriginal powers of self-government. The Nisga'a Nation is a model in this regard: They're introducing a series of private property reforms – against the backdrop of clearly defined powers of self-government recognized in their historic final agreement.
The Harper government's initiative, in effect, treats self-government as a "luxury good" – something aboriginal people can only afford after "basics" such as private property rights and free markets are in place. By that time, it may be too late.
Larissa Katz is an associate law professor at Queen's University.