Scholars and activists promote First Nation property rights in terms of community economic advancement. The most recent example is the publication of Beyond the Indian Act: Restoring Aboriginal Property Rights. Authored by Professors Tom Flanagan and Christopher Alcantara, as well as Andre Le Dressay, director of Fiscal Realities Economists, the book has ignited a contentious debate, particularly among First Nation communities.
[IMAGE:1|size:medium|align:left]The work was monumental, but it left out discussion of the political dimensions of property rights and how they could transform the underlying structures of First Nation societies and governments for the better. Moreover, given the dependency of band residents, private property rights advance political freedom and lessen vulnerability.
The focus of this article will be on one piece of legislation, Bill S-4, a bill that would have addressed the issue of matrimonial property rights on reserves. This bill will be examined because of the way it illustrates the underlying problems of the lack of property rights protection and political dependency, and also how the legislation could present hope for a long-term Indigenous Empowerment Agenda.
The newly-elected majority Conservative government could adopt property rights – both matrimonial and eventually property rights for all – as an incremental strategy of empowering First Nation citizens and transforming oppressive social and economic relations on reserves.
Matrimonial property rights legislation
On March 25, 2011, the Conservative government fell after a Liberal motion of non-confidence passed in the House of Commons. Legislation on the order paper also died, including Bill S-4, which would have dealt with what many call a ‘legislative gap’ that left First Nation women on reserve particularly vulnerable in cases of marital breakdown or divorce.
Reserves are federally-regulated under S. 91 (24) of the Constitution Act, 1982, so provincial legislation or judicial remedies for matrimonial property disputes do not apply, so equal division of real property are not assured for on-reserve women. Bands under the Indian Act do not possess legislative power over matrimonial property issues. While many bands provide local remedies for matrimonial issues, most communities lack legally enforceable solutions.
So, Bill S-4 was introduced. The bill imposed interim federal laws regulating matrimonial division and created eventual First Nation government jurisdiction once bands adopted their own matrimonial laws. With a Conservative majority government, the legislation should become law.
The property rights dimensions of the issue are unavoidable. There are two main ways to ”own” property on reserves under the Indian Act. The first is a certificate of possession, which is distributed by band council and approved by the Minister of Indian Affairs. However, it cannot be used in the economy or transferred to anyone other than a band member. The second means is customary allotment where interest in a piece of land is granted to someone on the reserve by a band council resolution (a law passed under S. 81 of the Indian Act which outlines council powers).
[IMAGE:2|size:small|align:right]The obvious weakness of these lesser forms of property rights is they are ultimately subject to arbitrary political will. Historically, most certificates of possession have been held by men. This was largely due to women joining their husband’s First Nation after marriage and living in his home. If a woman finds herself in marital breakdown, she has to appeal to chief and council for her rights. Given that she is in her husband’s reserve, that process is quickly politicized. Often, women and children must leave the reserve.
If violence is involved, this makes women even more vulnerable.
Aboriginal women are statistically more exposed to domestic violence than other groups and are amongst the poorest, so the lack of property rights protection deepens their marginalization.
Defense against vulnerability and inequality
Some good news is First Nations in the three Prairie provinces (Manitoba, Saskatchewan and Alberta) support equal matrimonial property rights. The Frontier Centre for Public Policy conducts an annual Aboriginal Governance Index ranking of bands based on accountability measures. Last year, additional questions of First Nation respondents were asked beyond the usual questions pertaining to governance and services.
The first question in the Frontier survey asked how respondents felt about the equal division of property and assets between both spouses on a reserve in case of marital breakdown. By a wide margin, both male and female respondents felt there should be an equal division. In total, 77 per cent of the 1,091 respondents responded “definitely” or “perhaps.” Prairie First Nations are clearly conscious about vulnerability and inequality.
Respondents were also asked if band governments were doing enough to protect women from violence. A troubling 42 per cent of respondents (1,090 were asked) across the provinces said “not really” or “never.” The last question asked 1,087 respondents if women were involved in community decision-making. Only 25 per cent said “definitely.” About 30 per cent said “perhaps” and 34 per cent said “not really” or “never.”
This vulnerability and inequality is worsened by the lack of property rights protection for all reserve residents. International development agencies, including groups like Oxfam, have long recognized that security of property and equal inheritance go a long way towards protecting women economically and help keep women safer from domestic violence. Grassroots First Nations, especially women, need to be convinced real property rights will end their marginalization and empower them in a way never seen before. It should be the concern of both social justice and limited-government advocates alike to advance property rights protections for women and all reserve residents.
Entrenched social structure and status on reserves
The matrimonial property issue entrenches elitism and oppression on reserves. At the bottom of the social pyramid – where the majority is trapped – are unemployed or work sporadically and have little education or training. Unemployed, uneducated, property-less women are part of this group. At the top of pyramid are chief and council. Below that apex are those in band administration or social service delivery positions. At this socio-economic level are also businesspeople connected to the band administration. Well-connected businesspeople and workers often work for development corporations or other band business ventures. Jobs and benefits derive largely from kinship relations so nepotism is high.
[IMAGE:3|size:medium|align:left]Landholdings are dependent on band edict, and the absence of basic rights means property may not be used in the economy. Economic ventures are often initiated and supported by the band government, with few avenues for individual entrepreneurship. The system is not geared towards lifting anyone out of poverty unless they work for the band or move off the reserve. Sociologist Menno Boldt in Surviving as Indians: The Challenge of Self-Government described it as a two-class system that has the potential to endure for many generations, given that the elite have the right to transmit landholdings and wealth (in most cases, undiminished in taxes), to their descendants. Unemployment, poverty, dependence and dysfunction become more entrenched in the lower classes every generation.
First Nations are heavily dependent on the state. The Indian Act centralized powers in band governments, which control reserve distribution, including social assistance, housing, access to post-secondary education funding, and even everyday home repairs. While some band governments separate administration from politics through independent boards of directors, this is not the case on most reserves. This author is aware of too many incidents where residents say access to services is dependent on phone calls to the right people. Even if First Nation women did not opt to use their property for entrepreneurial activity, their property would still provide a level of protection from band government dependence.
International and historical perspectives
Historically, economic and political changes in society are connected. Modern Western democratic liberalism arose through massive shifts in economic power and structure.
Fareed Zakaria, an Indian-American journalist and author, in The Future of Freedom wrote that economic forces played a dominant role, even more than intellectual or political forces, in transforming society. In looking at eighteenth century England, he said that more than church-state divisions and battles between lords and kings, capitalism has done the most to destroy ancient patterns of economic social and political life. Feudal land ownership was swept away and land was put in productive hands.
Others have persuasively argued that opening up the economy will have positive effects on the society. Nobel laureate economist F.A. Hayek said without secure property rights and independent wealth, political rights and civil liberties are not protected. As Hayek put it, “Economic control is not merely control of a sector of human life which can be separated from the rest: it is the control of the means for all our ends.” In other words, people who depend on the government for employment and livelihood have little capacity to oppose that government in exercising their political rights.
The debate over change in the developing world applies to the reserve context. Dambisa Moyo, Zambian economist and author of Dead Aid, said an independent middle class is a pre-condition for liberal democratic development. Moyo said Africa needs a middle class that has a stake in seeing the country run smoothly and under a transparent legal framework. The middle class also makes a government accountable. In a foreign aid-dependent environment, the government is less interested in fostering entrepreneurs and is accountable only to donors.
Canada’s reserve system is also dependent on federal transfers and the government. There is no need to develop entrepreneurship. But to create an accountability-seeking independent middle class, property rights are essential. Property rights and independent wealth would act as a catalyst for change. At a minimum, complete control over one’s property, as well as access to commercial credit, makes someone less dependent on band governments. Optimistically, independent citizens would demand accountability for money spent and would become a force for political change. In the best case scenario, an on-reserve class of business people who are not dependent on the band would develop. Business owners and entrepreneurs on reserves could hire wage labour and in time start to pay taxes. An ambitious middle class could start independent on-reserve media.
Hope for the future
The promise of Aboriginal property rights in Canada is unknown. In 2009, the Nisga’a Nation in British Columbia passed a law allowing individual members to hold small residential lots in fee simple. And earlier this month, the Canadian Human Rights Act was extended to complaints under the Indian Act, offering new recourse for women whose rights and autonomy are compromised by decisions of band chief or council. Still, it is not clear if isolated developments constitute a trend towards broader empowerment. While some may still argue First Nations are not ready for property rights, federal legislation like Bill S-4, along with growing voices for change within First Nation communities, give reason to hope for social renewal and better governance.