B.C. First Nation leads historic and controversial move toward aboriginal private home ownership

Aboriginal Futures, British Columbia, Commentary, Housing Affordability, Joseph Quesnel, Media Appearances, Property Rights

Source: Tristin Hopper, The National Post, 8 Nov 2013

This month, in a remote corner of northern B.C., just a few kilometres from the Alaskan border, three modest houses entered Canadian First Nations history.

The residences, all located on the self-governed lands of the Nisga’a Nation, are the first privately owned homes on Canadian native land. They can be mortgaged, they can be transferred without the approval of either Ottawa or local administrators and they can even be sold to a non-aboriginal.

As Dorothy Elliott, the Nisga’a deputy registrar of land titles, summed up to the Vancouver Sun this week, the Nisga’a can now own their homes “just like they would in the rest of Canada.”

It is only three more private houses in a country of nine million homeowners. But with these homes, the Nisga’a are pioneering one of the most divisive issues in modern aboriginal politics.

To the Nisga’a and the First Nations looking to follow their example, private ownership of aboriginal land will pull their people out of poverty and put Canadian First Nations on the road toward unprecedented levels of economic and political power. For opponents, Nisga’a-style land reforms will be the trap door by which First Nations culture is inalterably scrubbed from the Canadian landscape.

Whatever happens, it all started with three houses in northern B.C.

“We are no longer beggars in our own land,” Nisga’a president Joe Gosnell announced to a cheering crowd in Gitwinksihlkw, B.C., in 2000. “We are free to make our own mistakes, savour our own victories and stand on our own feet.”

The occasion was the enaction of the Nisga’a Final Agreement, a modern treaty ceding 2,000 square kilometres of B.C.’s Nass Valley to the Nisga’a people, along with $250-million and complete control over the area’s forestry and fishing management.

Buried in the self-governing agreement was a measure, first raised by Nisga’a elders in 1913, that one day soon, Nisga’a would be able to inhabit privately owned, mortgageable homes.

“We negotiated our way into Canada, and what British Columbians take for granted in land ownership is now available to Nisga’a homeowners,” said Kevin McKay, chair of the Nisga’a Lisims Government. “We aspire to a market economy, and this is a key feature of any market economy — and we’re no different.”

The virtues of privatizing native land have been pushed by as diverse a group as Peruvian economist Hernando de Soto, former Indian Affairs minister Jim Prentice and Conservative strategist Tom Flanagan. With private ownership, goes the argument, Canada’s on-reserve First Nations can leverage their lands to obtain credit, and with credit, they can break the “cycle of dependence.”

Bert Mercer, one of the first Nisga’a homeowners, told the Vancouver Sun this week he was planning to leverage his home to start a sport fishing business on the Nass River. Fellow homeowner Matthew Moore reported that he would leverage his plot to buy rental property on Vancouver Island.

Currently, at least 12 other First Nations are pushing for federal approval to implement Nisga’a-style land reform. While the Nisga’a, as a self-governing First Nation, could simply pass the measure on their own accord, First Nations under the Indian Act “will need legislation to transfer title from the Crown to the willing First Nation,” wrote Joseph Quesnel, a policy analyst at the Frontier Centre for Public Policy, in an email to the National Post.

That effort is being spearheaded by the First Nations Property Ownership Initiative, a federally funded program led by Manny Jules, former chief of B.C.’s T’kemlups Indian Band.

“My home is owned by the Minister of Indian Affairs,” wrote Mike LeBourdais, chief of B.C.’s Whispering Pines First Nation, in an email to the National Post. “All we are asking for is the same option that other Canadians have. This isn’t about special rights. It is about equal ones.”

Among Canada’s more than 600 other First Nations, Chief LeBourdais’ view is in the minority. At its 2010 General Assembly, the Assembly of First Nations passed a resolution stating bluntly that “fee simple title,” the landholding inaugurated by the Nisga’a, “will lead ultimately to the individual privatization of indigenous collective lands and resources and impose the colonizer’s model on our Peoples.”

Last year, the mere mention of the Manny Jules-drafted First Nations Property Ownership Act in the 2012 federal budget was one of the main factors that helped kick off the Idle No More movement.

Pamela Palmater, a Mi’kmaq lawyer from New Brunswick and key Idle No More spokeswoman, in April called the Nisga’a plan “not a solution to any of the issues First Nations are facing.”

Fears of private ownership of Indigenous land are certainly not without precedent. Most famously, in 1887 the United States imposed the Dawes Act; a homestead-style system that essentially liquidated all collective Indigenous land and forced Indians to settle on privately owned, European-style farm plots.

The act was premised on the so-called “civilizing power”of private property, but within 30 years, all it had done was shatter traditional governance structures and help to hand more than two-thirds of all American native land — an area the size of Germany — to white settlers. Today, the Dawes Act is seen as a social catastrophe in league with Canada’s Indian Residential Schools.

In Canada, it was partly the fear of a similar land grab that prompted the government of Alexander Mackenzie to enshrine the 1876 Indian Act with a ban on all forms of “charge, pledge, mortgage, attachment, levy, seizure, distress or execution” on reserve land.

Today, most on-reserve First Nations live on band-administered allotments, and have little or no power to transfer those allotments to other members. In certain cases, they can even be moved on the whim of the band council.

With only three small plots out of a land base roughly the size of Metro Vancouver, the Nisga’a are obviously proceeding with “prudence,” said Christopher Alcantara, an associate professor of political science at Wilfrid Laurier University.

“Nobody’s ever done this before; we don’t know what’s going to happen so it doesn’t make sense to go all-in,” he said.

Whoever ends up owning the three plots, the Nisga’a will always retain ultimate title to the land. Homeowners will pay Nisga’a taxes, be subject to Nisga’a laws and if they die without a will, the property reverts to Nisga’a ownership. If the house is in the way of a public works project, the Nisga’a will even have the power of expropriation.

“It won’t erode [Nisga’a] sovereignty,” said Mr. Alcantara. “It’s the same way that when Americans buy land in Toronto, Toronto’s land base isn’t being eroded.”

As Mr. Quesnel noted, the land “will always be subject to Nisga’a jurisdiction and law.”

While no other Canadian aboriginal groups have gone so far as the Nisga’a, many First Nations have already inaugurated some variant of private property, be it a restricted title system or long-term leases.

“The Nisga’a are not a test case; they are one example among a number of examples of how private interests are being created on First Nations lands,” wrote Jody Wilson-Raybould, the B.C. regional chief for the AFN.

She noted that in her own community of We Wai Kai on B.C.’s Quadra Island they enshrined a system where residents can freely transfer or sell their homes, but they cannot be sold to “non-Indians.”

“Each individual Nation has to determine for itself what form of land tenure system it wants to establish moving beyond the Indian act,” she wrote. “This was our choice.”

Still, the issue is divisive. As Idle No More protesters and bloggers battle against a trend they see as “a modern form of land war that will be waged on our Nations,” — in the words of Pamela Palmater — the handful of First Nations pushing for Nisga’a-style measures merely see it as a way of getting Ottawa out of their business.

“I’m elected to lead and make decision for my people [and] this is my Idle No More movement,” said Chief Shane Gottfriedson, chief of B.C.’s T’kemlups Indian Band.

“Under our proposal it is our land, our jurisdiction and our choice. We are not losing aboriginal title. We are implementing it.”

Whatever happens in the realm of First Nation land ownership over the next decades, however, the Nisga’a would be just as happy to be kept out it.

Although Kevin McKay calls it an “exciting time” to be Nisga’a, he is careful to note that what works for the Nisga’a does not necessarily work for Canada’s other 850,000 First Nations people — and he has no desire to evangelize.

After all, that’s what First Nations sovereignty is all about.

“We see no appropriate place for Nisga’a input unless it’s requested,” he said.