Beyond the Indian Act: Restoring Aboriginal Property Rights
November 4, 2013
Review By Daniel Millette
Discussion of land governance and land administration matters on Indian Act reserves in Canada has persisted for several decades. There is a general consensus that the lands have been poorly managed by a federal department that is bureaucratic and geographically removed from the same lands, not to mention culturally disconnected. It should be of no surprise that a book focusing on the transformation of Aboriginal lands into fee simple private holdings would attract the attention of anyone interested in public policy connected to Aboriginal peoples as well as academics and professionals involved in related law, history, and land economics. In Beyond the Indian Act: Restoring Aboriginal Property Rights, Tom Flanagan, a former aide to Stephen Harper; Christopher Alcantara, a former student of Flanagan’s; and André Le Dressay, a consultant and colleague of Flanagan’s, present their idea for federal legislation that would provide underlying title and a legal framework for fee simple property ownership on First Nations reserves. They refer to it as the First Nations Property Ownership Act. Considering that land is inextricably linked to culture and tradition, among most other facets of life on a reserve, the proposal can be disquieting and is well worth pondering.
The book is written in three parts, each corresponding to sections written by the individual authors. The first focuses on property rights under the Indian Act as well as on an assessment of the American Dawes Act, 1887. Flanagan argues that private or individual property rights are key in any market economy and that private property is more important than collective property. On the surface, the argument seems logical, yet there is little discussion of what it might mean to give up collective property rights, especially in communities where tradition and culture are paramount. The same author suggests that the primary difference between what he and his co-authors are proposing and the Dawes Act is the voluntary nature of their plan: First Nations would opt in (or out) of individual property ownership.
The second section is a historical synopsis of “Indian property rights” in Canada. Alcantara discusses traditional land holdings (customary rights), leases, and certificates of possession, presenting them as failed land-holding arrangements. There is no doubt that the three measures have their challenges, especially in terms of attracting outside investors and in terms of the time and associated costs needed for transactions to take place. The argument at times feels contradictory: Alcantara, on the one hand, (rightly) critiques the early European position that individual property would be a way of colonizing the population; yet, on the other hand, it is fee simple ownership (individual property) that he is advocating. The section’s material is not up to date: first, there are other forms of “Indian property rights” in Canada, such as those being derived out of the new treaties in British Columbia. While certainly not a panacea, these deserve to be part of the discussion. Second, the importance of the legislation that has given interested First Nations authority to manage and govern over their lands, the First Nations Land Management Act, 1999, is minimized, presented as “a step” towards what is being proposed. The author might have benefitted from a closer reading of the Framework Agreement on First Nations Land Management, the foundation of the act, in which misunderstandings regarding the same act might have been clarified.
The final section is a collage of conclusions, with no detailed analysis presented to the reader. Le Dressay’s underlying assumption is that, with the right administrative, legal, and institutional frameworks, First Nations would be able to derive economic benefit from fee simple lands and therefore would not suffer the levels of unemployment and social woes that they currently endure. There is simply no literature (or clear evidence) to corroborate this assumption. The cultural and historical realities of Canada’s First Nations are far too complex to expect economic measures to singularly resolve these challenges. Further, while there may be advantages to fee simple ownership and economic development in areas close to resources and/or markets, what happens to the hundreds of reserves in which these criteria (and other conditions required for prosperity and its benefits to occur) are non-existent? Le Dressay does not discuss the geographic and resource challenges that persist in northern and remote areas, nor does he discuss the political, social, and quotidian life of Aboriginal reserve communities.
The book gives some important historical narratives on the Indian Act and the Dawes Act. Further, it provides a synopsis of the way some existing property rights on reserves operate. It is therefore useful for anyone looking for another version of those historical and legislative realities. The summaries, however, do little to advance the theory that the final chapter so forcefully presents.
Finally, as with any work that attempts to further a specific agenda, regardless of the passion from which it emanates, the reader is cautioned. A great deal of research is required before any of the concepts presented can be entertained in a concrete way. The proposal is highly theoretical and as with all theory that relies on untested examples (such as the Nisga’a Landholding Transition Act, 2000), simply does not suffice in terms of providing “proof” of any potential success. Further, while the book makes the underlying assumption that wealth can only be derived from land ownership in fee simple, clearly there are other ways of gaining material success. Indeed, some of the examples cited in the book do just that.
 See, for example, the Tsawwassen Final Agreement, within which a “Tsawwassen Fee Simple Interest” is an interest that may be set out in Tsawwassen Law.
 The Westbank First Nation is cited throughout the book as a n example of a successful First Nation in terms of economic prosperity — all without fee simple interests.
Beyond the Indian Act: Restoring Aboriginal Property Rights by Tom Flanagan, Christopher Alcantara, and André Le Dressay
Monrtreal/Kingston: McGill-Queen’s University Press, 2010.