With respect to aboriginal affairs, the Conservative government is now being reminded of the truism that one thing leads to another. The aboriginal industry sees the government’s re-apology for Indian residential schools as a sign of weakness, leading to a wave of demands to resuscitate the Kelowna Accord.
At this juncture, it is critical for the government not to get knocked off its own agenda, but to stick to the principles embedded in its 2006 campaign platform and 2005 policy book. These documents emphasized timely settlement of land claims, accountability and transparency for first nations governments, more functional property rights on Indian reserves, and better education for aboriginal youth – all within a legal framework of respect for the Canadian Constitution and Charter of Rights and Freedoms.
Although the Conservative government has never identified aboriginal affairs as a high priority, it has made a creditable start toward implementing its platform agenda. Administrative achievements include setting up a provincewide aboriginal school board in British Columbia and encouraging home ownership on reserves. Even more impressive are the legislative highlights: a new process for settling specific claims, extension of the Canadian Human Rights Act to first nations governments, new rules for settling matrimonial property disputes (not yet passed).
Having achieved this much, it is vital for the government to maintain its momentum, because there is still a long way to go before reaching the goals of former Liberal minister Bob Nault’s reform legislation – more democratic, accountable and transparent first nations governments. Equally important, in my view, is to start the reform of property rights.
Most first nations do not own their own lands; rather, the federal Crown holds their reserves for their use and benefit. First nations’ economic initiatives often face long delays and high transaction costs because of the need to get ministerial approval. Lack of ownership also makes it more difficult to borrow money because first nations cannot use their lands as collateral.
The Conservative policy book is crystal clear on this point: “A Conservative government, in conjunction with First Nations, would create a First Nations Land Ownership Act, which would transfer Reserve land title from the Federal Crown to willing First Nations.” Note the word “willing.” This means offering title to first nations that feel ready to accept the benefits and responsibilities of ownership, not forcing ownership upon unwilling people as a way of privatizing their land.
Beyond first nations’ ownership of their own lands lies the farther frontier of individual ownership, as expressed in the 2006 Conservative platform: “A Conservative government will support the development of individual property ownership on reserves, to encourage lending for private housing and businesses.”
As some aboriginal leaders already recognize, there is no intrinsic reason why a first nation government should own all the land on its reserve, any more than the city government needs to own all the land in Toronto. The government needs to own some land for schools, parks, and other public amenities, but beyond that, it can use its powers of zoning and land-use regulation to promote public purposes.
Reserve lands owned by individuals, even by non-members of the band, will still be subject to all the powers of first nations governments.
Reform of first nations governments and property rights does not conflict with the Kelowna agenda of greater public investment in the social and economic wellbeing of native people. Regardless of whether they are called first nations or Indian reserves, they are essentially municipalities under the jurisdiction of the federal government, rather than of the provinces. Just as provincial legislatures appropriate money for health, education, and infrastructure at the municipal level, Parliament will continue to play the same role for first nations.
It may well be that first nations require more money for certain purposes. Education in particular is probably underfinanced. But there is no point in pouring in more money without ensuring it can be effectively spent.
Similar to the municipal level, the effective use of public money by first nations requires transparent governments responsible to their own citizens, who pay a significant part of their cost by taxing themselves. It also requires a vigorous civil society in which most people are self-supporting, own property and are not dependent on government to do everything for them. The aspirations expressed in the Kelowna Accord will never be reached without also making necessary reforms to first nations government structures and property rights.