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john ibbitson

The Conservative government will move slowly on the question of property rights on native reserves, but it will move.

The Harper government will consult with native leaders before introducing the legislation. Manny Jules, who heads the First Nations Tax Commission, has drawn up a template for legislation, but the word in Ottawa is that a bill is not expected to arrive until 2013. Although reserve lands are under federal jurisdiction, provinces are responsible for property rights off reserve, and may be asked to pass mirror legislation. It is, in a word, complicated.

But Prime Minister Stephen Harper and Aboriginal and Northern Affairs Minister John Duncan are resolved to bring in a native property rights bill, along with legislation to reform the education system on reserves.

Their motives are practical: Employers in resource industries are complaining of worsening job shortages. First nations workers could help fill that gap. But to qualify, they need a high school education, at least, and the social stability that land ownership can help provide.

Beyond that, natives who own their own property can be taxed by native governments, providing revenues for roads, water systems and the like. Native land owners can build equity, make improvements, profit from a sale – all of the things that make owning property attractive to non-natives.

And businesses that want to unlock the economic potential of reserves, from real estate development to forestry and mining, need the legal certainty that a property regime makes possible.

More than two-thirds of Canadian households own their own home. The Conservatives aim to make it a habit among first nations as well.

Currently there are a patchwork of rules regarding property on reserves, varying from reserve to reserve and province to province. I am drawing, here, from a consultant's report prepared by Tom Flanagan, the University of Calgary's political scientist and former adviser to Mr. Harper who has long advocated on-reserve property rights.

On many reserves, customary usage, as it's called, allows families to occupy pieces of land for years or even generations, though they have no legal claim to the land.

Certificates of possession confer stronger title to a piece of land, but the certificate must be approved by the aboriginal affairs minister, and the title can only be transferred to another band member.

Finally lands can be leased to outsiders. But leases are cumbersome to apply for and difficult to obtain. The economic consulting firm Fiscal Realities estimates that obtaining a legal right to use reserve property is four times as expensive as obtaining the same right off reserve.

"Ironically, although first nations are at the bottom of socio-economic rankings, they are potentially wealthy landlords," Mr. Flanagan observed in the report. But first the potential of that land must be unlocked.

First nations leaders have two objections to property rights. The first is that native land is traditionally communally owned. Private property is yet another assimilationist Western concept being imposed on native culture.

The second is that once reserve members own their land, they can sell it to non-natives, eroding the land base.

As David McLaren, who writes on native issues, observed Tuesday, the Dawes Act in the United States conferred similar rights on reserves, leading in some cases to a critical loss of control by natives over their territories.

"I can see how this won't end well for natives," he said yesterday in an e-mail.

But the legislation will be strictly voluntary. Only those first nations that want to embrace the concept of private property will do so. Mr. Jules estimates that only 11 of more than 600 first nations are currently interested.

"Every time there is a discussion about amending the Indian Act, the Indians are opposed to it," he said in an interview. Very often, though, once the legislation is in place opinions change.

There is a Nixon-in-China quality to the wave of legislation that the Harper government has implemented or is proposing to reform relations between first nations and the Crown. Much of it has faced opposition from both natives and non-natives. Much of what is to come will be even more strongly opposed.

But one is tempted to ask: Do the opponents oppose because they think things are going so well?