Private Property Is Nothing To Fear: First Nation should debate property on merits

Commentary, Aboriginal Futures, Joseph Quesnel


Edited version of this piece originally appeared in National Post on October 14, 2010
Indian and Northern Affairs Canada (INAC) has ordered a study of economically successful First Nations to better understand how all First Nations can enjoy better economic success. A list of the 65 most economically successful indigenous communities was drawn up and INAC made plans to visit chiefs of these communities. 
Unfortunately, some Aboriginal leaders are already suspicious the plan is about ‘privatizing’ reserve lands and the enquiry is already bogged down into a tired debate whether or not private property rights are right for natives.
Assembly of First Nations (AFN) National Chief Shawn Atleo said it will create fear among the 600 or so chiefs affiliated with the AFN that have apparently ‘rejected’ the private property plan. 
When asked about the idea of property rights on reserves, Chief Gilbert Whiteduck of Kitigan Zibi First Nation said: “Would I expect [Indian Affairs] to reveal everything? Not for a minute. Why would they want to reveal that to first nations when their ultimate goal, I believe, is assimilation. The White Paper is still alive and well.”
Talk about jumping to conclusions.
This confusion stems from two separate events where private property actually has been promoted as a tool for First Nation economic development, and the belief on the part of AFN chiefs that private property is an exclusively western concept that could only harm First Nations.
One such event is the decision of BC’s Nisga’a Nation to adopt a limited, voluntary form of fee simple property ownership on residential lands. The other is BC First Nation leader Manny Jules’ promotion of a voluntary First Nations Property Ownership Act which would make such initiatives a universal option for First Nations everywhere. First Nations could choose to adopt a system where full property title to First Nation lands belongs to the actual First Nation, rather than the Crown. This means members can buy, sell, lease or transfer the land to anyone. The First Nation retains underlying title to the land so the land always remains Native land.
What is clear is there is plenty of fallacious thinking going around about Aboriginal property rights. The first is the ‘no thanks, no property rights for us, we’re indigenous’ fallacy. This fallacy involves news stories quoting cultural anthropologists who point to historic mixed property rights regimes among indigenous peoples, where water sources or farm plots were ‘owned’ by individuals or families. However, this argumentation misses the point: just because indigenous people did not have full property rights at one point does not mean they cannot choose to have it now. Ideas stand or fall on merit.
Next is the ‘this indigenous group may lose all its property, so it won’t work’ fallacy. At present, the Nisga’a Nation is experimenting with a very limited form of property rights. Members must voluntarily opt into the system. The policy only affects about two square kilometers out of two thousand square kilometers. But, even if the Nisga’a experiment fails, that does not mean property rights are not right for Natives in all circumstances. It could be the Nisga’a did it wrong or other factors interfered. Like any group, First Nations must adapt this institution to their particular circumstances.
Some indigenous leaders are quick to point out how some First Nations are doing well in spite of the Indian Act and seemingly without private property, but this does not mean they cannot do much better with private property or that other factors, such as location, aren’t playing a large role.
Another fallacy is indigenous peoples cannot engage in business activities, like using land as collateral, as it subtracts from cultural identity. Let’s call this the ‘no thanks, business makes me less indigenous’ fallacy. This assumes cultural identity of indigenous people cannot be reconciled with engaging in business. The thousands of Aboriginal people engaging in business today and who speak their language, embrace indigenous spirituality, and engage in traditional activities may challenge this unfair assumption. 
Absent fear mongering, one senses a deeper moral argument for property rights. There is something dignity enhancing about individuals – of any group – owning their house and the property on which it sits. It speaks to the universal desire for individuals and families to be free from the reach of government at some levels. First Nations, more than many peoples, know this can be abused. There is a reason property rights were included in the Universal Declaration of Human Rights.
Regardless, the point is to have an open discussion free of fallacious thinking.