...Part 1 -- A Recipe for Poverty
...Part 2 -- A Step Towards Better Native Housing
...Part 3 -- Wrapping Native Land in Red Tape
...Part 4 -- Let Natives Choose
Millions of Canadians take the right to buy and sell their own home for granted. Yet on Canada's reserves, where land is held communally, aboriginals have been systematically denied this fundamental economic right for generations. In a four-part series beginning today, Tanis Fiss, director of the Canadian Taxpayers Federation's Centre for Aboriginal Policy Change, will explore the consequences of this obsolete land-use policy, and provide recommendations for reform.
The news from Natuashish is bleak. In 2002, the federal government spent $152-million relocating Labrador's Mushuau Innu to the newly constructed community, hoping the epidemic of unemployment, suicide and substance abuse that had plagued their decrepit Davis Inlet settlement would abate. But a recent in-depth investigation performed by the CBC shows conditions among the Innu are worse than ever. Drug and alcohol use is still rampant, the local economy is virtually non-existent, and now it is reported that $3-million in band funds have gone missing.
Sadly, Natuashish is all too typical of other aboriginal communities. Under the Indian Act, natives have been encrouraged to remain on reserves, where land is held in trust by the Crown and controlled collectively by band councils, not by individuals. This communal arrangement, which resembles nothing more than the collective farming model implemented disastrously under Soviet communism, stifles individual entrepreneurship: Because landholders do not own their property in fee simple, they may not obtain mortgage financing, the most common method for small business owners to raise start-up capital. Indeed, the arrangement gives landowners little motivation to improve their property or build equity of any kind within their community. The policy thereby stifles economic development, and promotes unemployment and ideleness - as well as the ills that follow in their wake.
Some reserves have attempted to promote economic development through so-called "customary" or "hereditary" rights. Under such an arrangement, some band councils allot parcels of reserve land to families and individuals who have lived on that land for a long period of time. However, such informal rights are more limited than the outright fee-simple ownership most Canadian property owners take for granted. In many cases, customary rights may be exercised only for residential or agricultural use, not commercial purposes. Moreover, although holdings can be passed on to heirs and subdivided among family members, they cannot be sold to an unrelated third party. Nor can they be siezed by banks or other financial institutions, which explains why they cannot be used as mortgage collateral.
Since it's the band that assigns customary rights, it's the band that handles any disputes that arise over ownership. (The federal government does not recognize customary rights, as such rights lie outside the purview the Indian Act). Since owners cannot invoke the powers of the Canadian legal system to protect their interest in a given parcel of land, they are liable to dispossession based on arbitrary or even corrupt decisions emanating from band councils.
The link between land ownership and prosperity is well-known to economists. Yet land reform remains elusive because Canadian governments and native leaders remains wedded to the idea that reserve land should be owned collectively. Courts have played a role as well. In 2001, for instance, the B.C. Supreme Court ruled in the case of Lower Nicola Indian Band v. Trans-Canada Displays Ltd. that a band council holds a fiduciary obligation to all band members, and must therefore consider the rights of other band members in decisions involving the use of property.
In the Nicola case, a band member had claimed possession of 80 acres of reserve land based on customary use, and had entered into an agreement with a company to display billboards on that land. After his death, his estate claimed the property. The court, however, held that customary use did not create a legal interest in the land; and that until permission was given by the band or the government, the company displaying billboards would be deemed to be trespassing on reserve lands.
It is also common for disputes to arise over property rights during divorce proceedings. Courts trying to divide up on-reserve property have no recourse to provincial family law, but must instead rely on the federal Indian Act, which contains no provisions for distribution of property upon the breakdown of a marriage. In normal situations that arise off-reserve, a house can be sold and the proceeds split between divorced parents. That is usually impossible on reserves. And because tribal councils often side with the ex-husband in domestic disputes, it is not uncommon for wives to be turfed out of their homes, and off the reserve entirely.
For all of these reasons, it is clear that customary rights are a poor way to manage the private use of land on aboriginal reserves. Over the next three days, I will discuss ways to reform the current system in a way that protects the rights of landholders and the autonomy of tribes alike.