By now most of you have heard about the Harper government’s intention to introduce legislation that will turn reserve lands into individual holdings called fee simple. The legislation has been referred to as the First Nation Property Ownership Act (FNPOA). Some media outlets have referred to it as “privatization” but what the legislation would really do is turn the collective ownership of reserve lands into small pieces of land owned by individuals who could then sell it to non-First Nations peoples, land-holding companies and corporations, like Enbridge for example.

The idea is not a new one. Hernando de Soto has been trying to sell the same idea to Indigenous populations all over the world. The evidence seems to show that the Indigenous peoples are far worse off for it. Prior to de Soto’s destructive world tour, the Indigenous Nations in the United States suffered the sting of fee simple legislation in the Dawes Act. Once the lands were given to individuals, the lands were subject to state laws. The same would happen in Canada where the lands would be subject to provincial instead of federal law.

The primary purpose of the Dawe’s Act was to assimilate Indigenous peoples in the U.S. by breaking up their Indigenous governments. The legislation allowed the government to divide up communal lands into small parcels to be held by individuals. It has been described by historians as:”the culmination of American attempts to destroy tribes and their governments and to open Indian lands to settlement by non-Indians and to development by railroads” (Oklahoma Historical Society). In the Canadian context, similar legislation will open up “Indian lands” for big oil, gas and mineral extraction.

I have referred to FNPOA as the Flanagan National Petroleum Ownership Act for two reasons: (1) the name of the Act (FNPOA) comes from the book Tom Flanagan co-wrote (with Andre LeDressay and Chris Alcantara): Beyond the Indian Act: Restoring Aboriginal Property Rights and (2) the Act will do more to open up reserve lands to oil, gas and mining companies than it will bring prosperity to First Nations.

For those who don’t know, Tom Flanagan is a right-wing anti-First Nation academic who has written about and spoken out against First Nations in a very overtly racist and derogatory fashion, and often lacks a sound factual or academically-sound research basis.

Flanagan’s book was fully endorsed by Manny Jules, a First Nation man and former chief of Kamloops Indian Band and is now the head of the First Nation Tax Commission (FNTC). The FNTC, contrary to its name, is actually a federal organization, whose chief commissioner is appointed by Canada’s Governor in Council and reports to Indian and Northern Affairs Canada (INAC).

Aside from a salary of over $200,000, it is also notable that in the recent round of Conservative cuts to Aboriginal organizations, Jules’ FNTC was protected from substantial cuts. The political and financial links between the FNTC and the federal government’s intended legislation become apparent when one reads Flanagan’s book in its entirety. Here is an excerpt from my published review of the book:

In fact, the book concludes by affirming that ‘there is little doubt that this proposal is a continuation of the First Nations–led initiatives of the 1990’s’ … And, if First Nations require any assistance in catching up to the modern world, the book suggests that they use the services of Le Dressay’s Tulo Centre of Indigenous Economics. (Located in Jules’s home community of Kamloops, this centre was created out of a First Nations Tax Commission project he chaired.) It should come as no surprise that one of the keys to success of the authors’ proposal for the First Nations Property Ownership Act will be to create additional centralized institutions, to take over the new jurisdiction it also creates.

The media will no doubt be publishing many editorials, opinions and commentaries on this issue in the coming weeks until the bill is introduced in Parliament. Many of these articles, especially those from the right-wing fringe will leave out a great deal of context, perpetuate the same myths that Manny Jules and Tom Flanagan do and will settle for the catchy headlines instead of help inform the public about the serious issues involved.

Here are some of the questions asked of me by the media and my answers in very brief form (more detailed answers will be provided in my forthcoming publication):

1. First Nations hate the Indian Act, why would they object to Harper amending or repealing the Act?

The abolishment of the Indian Act was the central feature of the 1969 White Paper — the federal policy that would assimilate “Indians” once and for all. It is up to First Nations to decide when and how they want to amend or repeal the Indian Act — Canada has done enough damage under the guise of “what is good for the Indians”.

Harper specifically promised at the co-called Crown-First Nation Gathering that: “To be sure, our Government has no grand scheme to repeal or to unilaterally re-write the Indian Act”. This legislation would be a significant and unilateral amendment to the Indian Act.

2. But First Nations can’t access mortgages or start businesses without owning land in fee simple?

That is simply not true. Individual band members have been working with their First Nations and the major banks to obtain mortgages to build homes on reserve for many years. Many band members and bands have also been able to receive loans from banks to start businesses without leveraging their homes. One must also remember that owning a home doesn’t mean you can open a business on your land — there are zoning and other laws on reserve as there would be in any neighborhood.

3. But Canadians get to own land in fee simple?

Canadians have the option to own land in fee simple only if they are wealthy enough to buy land or qualify for a mortgage. Thousands of First Nations people also own land in fee simple all over the country. Some First Nations people also hold land via Certificate of Possession on reserve which is very similar to fee simple, except that it can’t be sold to non-First Nations people.

(4) But if First Nations could own land in fee simple, wouldn’t that cure the housing crisis?

This ability to own land in fee simple has not cured homelessness in Canada and in fact, it is on the rise. The ability to hold reserve lands in fee simple would not qualify any individual for a mortgage. Part of getting a mortgage is being able to get insurance — who would insure a mold-infested, abestos-contaminated home without running water or sanitation services? This sounds like more of a cure for the economy and mortgage lenders than it does for First Nations.

5. But commentators have said this would cure First Nation poverty?

The origins of the current crisis of poverty in First Nations are in the theft of our lands and resources, the genocide committed against our people, the federal strangulation of our governments and the refusal to properly recognize and provide space for our treaty, Aboriginal, and inherent rights and laws. Fee simple has nothing to do with it. There is absolutely no evidence that fee simple ownership has cured poverty. In fact, the studies have shown that the chronic underfunding of essential social services by the federal government is the primary cause of the current levels of poverty in First Nations.

6. But Manny Jules and eight other First Nations want this legislation?

With all due respect, Manny Jules heads a federal government organization — he is not a First Nation leader or community spokesperson. If there are a handful of First Nations who truly want to divide their reserves into individual parcels of fee simple lands, they can do so via current processes under the Indian Act or self-government negotiations for example. There is no way that eight First Nations should set national law or policy for 633 First Nations. Treaty implementation and the resolution of land claims are far more critical to First Nation well-being.

7. But isn’t the legislation optional? What’s the harm?

With INAC, even optional laws and policies are never truly optional. Once the government decides it wants First Nations to behave in a certain way, they use a series of financial and political incentives and punishments to ensure First Nations act as the government deems appropriate. With THIS Harper government, the focus would be more on punishments and they would be severe for failing to conform. For example, First Nations could voluntarily enter into Act XYZ or fail to receive funding associated with that program or service.

Plus, the element of volunteerism does not apply in a situation of duress. Is it truly optional to sell one’s land if one is already impoverished and suffering from a lack the basic necessities of life? Even Manny Jules admitted that one of the challenges of this bill is that all reserve land could be lost.

Jules wants First Nations people to prove to banks that they are “worthy” of owning a home. WOW!

8. What are your other concerns related to FNPOA?

– Canada does not have the legal authority to pass such a bill in violation of both Aboriginal and treaty rights, the Royal Proclamation, and UNDRIP;

– they haven’t thought about the legal, political, social or cultural implications of such a law (for example — exactly who would get the fee simple parcels of land?);

– Canada has not learned from history — the Dawes Act devastated First Nations in the U.S. — why would it be better here;

– this is Harper’s political agenda to once and for all assimilate Indians and turn reserve lands into provincial land holdings and jurisdiction;

– this bill would also help Harper end-run the duty to consult and accommodate re oil, gas and mining on our lands, undermine our leadership and empower corporations like Enbridge to lay their pipes wherever they want;

– turning reserves into fee simple parcels registered in provincial land registries under provincial law would enable easier expropriation of our lands for big oil and gas companies like Enbridge;

– FNPOA, together with other bills in process: Bill C-428 impacting by-laws, estates & education, Bill S-6 re elections, Bill S-2 re matrimonial real property, Bill C-27 re First Nation accountability, Bill S-8 re First Nation water, and the First Nation Education Act to come essentially change the entire legal and political landscape for First Nations — unilaterally and against our collective will.

First Nations have the right to free, informed and prior consent to any laws, policies, decisions or actions that impact our lands and resources. This means that if we don’t want Enbridge or any other extractive industry on our lands — that is our decision to make. Our people will not allow big oil to use FNPOA as a land grab to circumvent our rights.

There is simply nothing good about this bill and much to be lost from it. People need to stop coming up with ideas about how to “fix” us as we always end up worse off for it.

Canadians are not required to understand or even support our inherent, treaty, domestic and international rights — they just have to accept that this is the law, not unlike any of the laws they cherish.

Canada needs to stop trying to assimilate us and instead focus on fulfilling its legal and treaty obligations instead of trying to find ways around them. I think we have suffered enough — let us go about the hard job of healing and rebuilding our Nations and enjoy our fair share of what is ours. 

pamela-palmater

Pamela Palmater

Dr. Pamela D. Palmater is a Mi’kmaw lawyer and member of the Eel River Bar First Nation in New Brunswick. She teaches Indigenous law, politics and governance at Ryerson University and is the Ryerson...