The Globe and Mail featured an online discussion between First Nation entrepreneur and lawyer Calvin Helin and Meko Nicholas for the First Nations Land Advisory Board Resource Centre over the contentious issue of Aboriginal property rights.
Nicholas tried to counter Helin’s optimism about property rights by asserting that First Nations can do well under the First Nation Land Management Act (FNLMA). For those unaware, the FNLMA is a piece of legislation passed by the Liberals in 1999 that allowed bands to opt out of the land management provisions of the Indian Act. However, the land would remain a “reserve” under the Indian Act and be shielded from permanent alienation (any parcelling off of land).
Nicholas is right on one account. Bands that operate under FNLMA do better than those that do not. They experience more employment and growth. Why? Because they do not have to go through the federal government to develop their own lands and can adopt their own land codes.
The problem is Nicholas fails to recognize the greater potential of full property ownership to advance First Nation communities and lift them out of poverty.
Banks are finding ways to get around the land restrictions that prevent collateralization of band assets, yes. However, it is always better to deal with the cause of problem and not just its symptoms. The cause of Native poverty is a mixture of things, but it is also the inability to access property rights.
Nicholas actually creates a problem when he asserts: “There has been little evidence to support the claims that the property ownership proposal is effective at addressing social conditions, poverty or housing shortages in Canadian Native communities.”
Yet, near the end he says: “We don’t need more experiments, there are First Nations who have opted for fee simple tenure. Lets see if it does what the experts say that it does.”
This is likely the Nisga’a who have adopted full fee simple rights.
Why don’t we wait and see how they do?
It is also the case that there are case studies. In the United States, reserve lands exist in multiple forms of land tenure and lands held individually and not collectively do much better.
We don’t have to re-invent the wheel here folks. Property rights work for all groups.