First Nations Property Ownership Act: More Shenanigans

The First Nation Property Ownership Act (FNPOA) is all about and eventually who owns the land. Is it the federal crown, provincial crown, First Nations or even private ownership to non first nations? This raises the questions, why is it being discussed – what are the underlying intentions? - Much of proposed acts, policies, and legislation today have a shared history behind them; usually a recycled bill or policy with the removal of existing Aboriginal rights to land through their own consent. The First Nation Land Management Act (FNLMA) is endorsed alongside with the FNPOA as a federally dictated governing tool, but when used separately, can be applied in the right circumstances to benefit a well located First Nation. The FNPOA is not the solution to poverty on reserves, rather a lack of resource sharing and lack of land claims being resolved are among the issues.                                                                                                 According to the AANDC website, the First Nation Property Ownership Act (FNPOA) was introduced in a pre-budget presentation to the House of Commons Standing Committee on Finance on 15 September 2009, by Manny Jules, Chief Commissioner of the First Nations Tax Commission, proposed legislation which he referred to as the First Nation Property Ownership Act (FNPOA). The FNPOA would allow First Nations to opt out from the reserve land system of the Indian Act; transfer title from the federal government to First Nations governments; and allow First Nations to move to a Torrens land title system. The proposed legislation has received preliminary support from some First Nations and First Nations organizations, and is being examined in partnership with Aboriginal Affairs and Northern Development Canada (AANDC).[1] Dr. Pam Palmater points out Jules pulls in a $200,000 federal organization salary spreading the message for the conservative government, and is not a credible source to warn of the dangers on the issue.[2] The question is whose best interest is Jules is speaking for, the federal government or First Nations. History tells us the federal government has always intended that reserve land will eventually return to private ownership, therefore leaving First Nations without a permanent and legal base for land.

The thesis statement of this essay is the proposed First Nations Property Ownership Act to privatize property on Canadian reserves, is a violation of Treaty, international law and domestic constitutional rights. The process is being endorsed as a means to ending poverty on reserves and closing the wide social economic gaps between Indians and the rest of Canada. First Nations assert that this act is not in their best interest but a political move to evade treaty obligations and rights. This process is laying the legal foundation to big projects that will then be proclaimed in the best national interest of Canada. The leading interest in one such project is the proposed pipeline through the BC interior to sell to an Asian market; “China is the highest emitter of greenhouse gases in the world”.[3]

Communal ownership of land can be made increasingly difficult in a legal and political system that promotes individual ownership above all else. The article The Logic of Aboriginal Rights by I. Duncan argues that sometimes group interests are best protected by assigning legal rights to individuals, such as when we protect the collective right of a group by assigning legal rights to individual members to engage in group-specific activities.[4] This is the type of thinking and belief set behind those promoting the direction of corporate and federal conservative government interests. Private ownership of land is not the issue for First Nations and their struggle with poverty. It is the lack in settlement of land claims, sharing of natural resources from their traditional lands, equal funding to First Nations which  are the major issues, not private land ownership. There have been examples, like the certificate of possession on reserve land that showed no benefit in the past as was proposed by the author.[5]

Different interests are endorsing and opposing the FNPOA. Support for the proposed act come from former First Nations Chief of Kamloops Indian Band, Manny Jules. Jules recently wrote the forward in the book, Beyond the Indian Act, written by one of Prime Minister Stephan Harper’s advisors; Tom Flanagan. As mentioned previously, Jules is the Chief Commissioner of the First Nations Tax Commission The term tax is associated with the Appropriations Act where House of Commons have to approve a federal budget from year to year. This is the reason why, funding to reserves is not a treaty right but rather a policy. That’s why the general public, and even our own are accusing First Nations of using tax dollars all the time. All Canadians whether they are First Nations or non first nations benefit from tax dollars because of the transfer payments, equalization payments, and the nature that Canada is a federal state. Provinces benefit from the tax dollars, especially the have-not provinces like Manitoba, therefore all Manitobans benefit from the tax dollars. Joseph Quesnel, a conservative writer for the Winnipeg Sun is a classical apologetic for the Canadian government.

Quesnel article in the Winnipeg Sun, November 23, titled First Nation Land Ownership Isn’t A Cure All, is an example of not knowing the issue and poor research. First, Quesnel admits he was not at the conference in person that discussed the FNPOA, therefore his source is secondary information. Quesnel criticized Dr. Palmater position on the FNPOA. Palmater’s position provides a more accurate picture of how devastating the act will be to First Nations land and to the future. Land is the key interest of First Nations through spirituality and their special relationship to the land. According to First Nations and elders the land is not about money and profits but it is about sustainability of mother earth’s elements like water, air, environment, climate change, ect., - Quesnel questioned why Manny Jules was not invited to this conference to express his views. For First Nations, Many Jules is considered a government agent to do away with land rights. Quesnel himself fails to balance his argument in criticizing AMC. He does not mention financial incentives and options for communities behaving accommodatingly in following certain directions as dictated by the federal government. His statement “reserves are colonially imposed system of land tenure that impede economic development”;[6] fails to take several dynamics into consideration such as location, or First Nation entrepreneurs getting an education, training, then establishing good credit as alternatives. Lastly, he fails to recognize the collective ownership that a land base (reserve) provides to the people and the land.

Opposition to the Act comes from scholars such as Dr. Pam Palmater who are among those who believe a public opinion attitude overhaul is required. Many feel education is the answer for First Nations. This view seems to contradict the view of those interested at filling the holes needed in the low end labour and service sector across the country by the fastest growing demographic in Canada, who are the First Nations people. Further contradictory is that First Nations can already divide their land up if they want, through a section currently in the Indian act. Palmater states this most recent proposed Act is an attempt to speed up the land take over process.  

Palmater in particular spoke out against the FNPOA saying it the potential to destroy First Nation communities, this "unlocking" benefits banks, investment companies, the extractive industry and government - not Indigenous peoples. The very objective of this plan is to open up Indigenous communal lands for mortgaging, credit, loans, liens, seizures, taxation and for economic development in the form of mining and pipelines. She has answered questions surrounding economic development held by the general public who question if it’s true First Nations can't access mortgages or start businesses without owning land in fee simple by pointing out there are thousands of young people who graduate every year, build good credit and get loans to achieve their goals. She has been educating both First Nations Canadians that Canada does not have the legal authority to pass such a bill in violation of Aboriginal and treaty rights, the Royal Proclamation, and the United Nations Declaration on the Rights of Indigenous Peoples.  Further this bill would also help Harper end-run the duty to consult and accommodate regarding oil, gas and mining on our lands. While undermining First Nation leadership and empower corporations like Enbridge to lay their pipes wherever they want. In other words, turning reserves into fee simple parcels registered in provincial land registries under provincial law would enable easier expropriation of our lands.[7]

Dr. Peter Kulchyski said, in terms of resource development, the conquest isn’t over yet. Today the battle is fought in corporate boardrooms and courtrooms against 1000’s of lawyers. He spoke about two key terms Carl Marx used in theory: capital accumulation and primitive accumulation. From Carl Marx’s book, Capital, capital accumulation is economic growth under capitalism. Capital is looking for surplus value, which produces additional capital. Primitive accumulation precedes capitalist accumulation. This primitive accumulation plays in political economy about the same part as original sin in theology. Adam bit the apple, and thereupon sin fell on the human race. Its origin is supposed to be explained when it is told as an anecdote of the past. In times long gone by there were two sorts of people; one, the diligent, intelligent, and, above all, frugal élite; the other, lazy rascals, spending their substance, and more, in riotous living. The legend of the logical original sin tells us certainly how man came to be condemned to eat his bread in the sweat of his brow; but the history of economic original sin reveals to us that there are people to whom this is by no means essential. [8]  Kulchyski defined in particular, primitive accumulation as European practices during the 16^th and 17^th centuries as the process of separating people from their land, to create a workforce of wage workers.

Kulchyski said the intent of the FNPOA is to create land that can be bought and sold. He compared the FNPOA more to the Métis scrip’s in the early years of Manitoba than to the Dawes Act used in America. He asked us how many Métis communities exist today. – Not many, this is the goal; to separate First Nations people from their land. The federal government is providing incentives and options to enter the proposed legislation.[9]         

In Manitoba, Buffalo Point First Nation is billed as the model First Nation. Buffalo Point uses a governing structure that is compatible with, and promoted alongside the FNPOA. This is supported by an internal Indian Affairs study, The Top 65 First Nations in Canada to look at patterns among reserves in Canada that make reserves successful.[10] Buffalo Point First Nation is doing well financially, but there are always two sides to the argument. Let’s forget that that the chief is non aboriginal; that is not important as he was adopted into the Thunder family a long time ago[11]. The criticism is that the Chief and Council is rather the model First Nation for conflict of interest. Apparently the Thunders are shareholders of businesses and allegedly have a beautiful house on prime real estate that would be out of a current chief’s salary range. Recently Chief Thunder denied some of his own members of the band to vote with a reference to a land code that must be passed to ratify this FNLMA. There has been band member protest which leads to believe that membership are not behind this initiative.

Long Plains also made The Top 65 First Nations in Canada list and is doing a lot of positive things in the community. One such venture is using the FNLMA to their advantage by purchasing land that is off reserve to start business ventures in nearby Portage La Prairie. One other band, Opaskwayak Cree Nation (OCN) has also entered the FNLMA, but has taken a different route. Instead of purchasing land, they have turned land set aside for TLE and put it under the provincial authority that the FNLMA falls under. So the danger for both communities is that if they go broke, they both will lose the land and it will then be transferred to provincial status, the difference is that Long Plains will not lose land that falls under the protection of the Indian act. OCN however, will lose the land to banks. There has not been a straight answer either from the government or the proponents of this act how land designated under the FNLMA will determine the ownership and who will eventually be the rightful owners if the bands are using this as collateral for loans.

History is contrasted from Canada’s American counterparts in The Redefinition of American Indian Property Rights in American Indian Reservations by Stephan Cornell and Joseph P. Kalt who were part of the Harvard Project on American Indian Economic.[12] The act raises questions as to just what was the thought processes behind land tenure held by both parties, how these viewpoints fit into the common law and political framework of Canadian government today. The Harvard Project is regarded by First Nations as a better measuring stick of the overall health of a community because self determination is deciding factor  than  by Canada`s Top 65 Bands in Canada list, who use internal documents and a general well being index as indicator.

Congressman Henry Dawes of Massachusetts landmark piece of legislation, the General Allotment Act (The Dawes Severalty Act) 1887, was designed to encourage the breakup of the tribes and promote the assimilation of Indians into American Society. It will be the major Indian policy until the 1930s. Dawes' goal was to create independent farmers out of Indians — give them land and the tools for citizenship.[13] The difficult job of healing and rebuilding a community is hard enough work, yet leadership still has to continue to deal with government officials continually trying to find ways around living up to the treaty process and obligations.[14] During a guest lecture from Dr. Peter Kulchyski, he clarified that the Dawes Act is different than the FNPOA because the choice is up to the First Nations themselves to enter into the FNPOA. Further he also said that the FNLMA is more on the side of governance, an attempt to change the system of governance to a one size fits all model; a new name to the same goals of the First Nations Governance Act.[15]

According to the AANDC website, The FNLMA, enacted in 1999, allows participating First Nations to opt out of the 34 land related sections of the Indian Act and manage their land, resources and environment under their own land codes. The FNLMA then places a First Nation under provincial jurisdiction.[16] Removing the Indian Act is the only legislation that protects Indian reserves from taxation or to be seized for default payments. The FNLMA will be limited because land is now under provincial interest and jurisdiction.  Most recently, Chief Clarence Louis of Osooyos Indian Band, B.C., and (another Top 65 reserve) sounded very unsure of legal status of the land if bills weren’t paid; if the land title would return to reserve status. His community also used the FNLMA and is widely promoted as Canada’s most successful First Nation. This proves rather that First Nations businesses can be just as and more successful than any business.

Finally the question of reserve ownership has always been an issue by the federal government and First Nations. It was always the intent of the federal government to assimilate and civilize First Nations into private ownership, adopt the European thinking of land ownership. First Nations always viewed reserve land as forever from generation to generation. Reserve land was set aside to represent that North America was once owned by First Nations therefore a piece of that land must represent that special relationship to the land by First Nations. Land ownership to many First Nations is not the issue to benefit and make a living and be good citizens of Canada.

In conclusion, poverty on reserves will not be addressed by individual ownership as proposed by the FNPOA. Poverty will only be addressed through proper education and training to First Nations, to address the outstanding land claims and to establish revenue sharing of natural resources from traditional lands. It is also important to understand that transfer payments whether by equalization or tax breaks is available to all Canadians, not just First Nations. Lastly First Nations are entitled to universal programs like education, health, and welfare; it is the lack of equal funding to deliver programs and services on reserves that lead to poverty of First Nations. On the First Nation’s side, it is also good governance including transparency and accountability that must be used to address poverty. Therefore the FNPOA will not address the crisis situations on reserves but rather will jeopardize the original treaties about land rights.

 

 

 

 

 

 

 

 

Bibliography

1.      Aboriginal Affairs and Northern Development Canada: First Nation Property Ownership Act. (www.aandc-aadnc.gc.ca)

2.      Additional resources accesses at:

http://www.cbc.ca/player/News/TV+Shows/The+National/ID/2173712911/

http://www.cbc.ca/player/News/TV+Shows/The+National/ID/2189503699/

http://soundcloud.com/el-chaos/pamela-palmater-reserve-vs-fee-simple-land

 

Al Jazeera News

3.      Buffalo Point First Nation Website. (http://www.buffalopoint-firstnation.ca/)

4.      Christopher Alcantara. (2003)Individual Property Rights on Canadian Indian Reserves: The Historical Emergence of Certificates of Possession. Canadian Journal of Native Studies Vol 23(2) available at:  (http://www2.brandonu.ca/library/cjns/23.2/cjnsv23no2_pg391-424.pdf)

5.      Duncan, I. (2003). The Logic of Aboriginal Rights. Ethnicities, 3(3), 321-344.

6.      First Nation Property Ownership Initiative. (http://www.fnpo.ca/proposal.htm)

7.      Marx, Carl. Capital. New York: Modern Library, 1906.

8.      Pam Palmater. Indigenous Nationhood Blog. (http://nonstatusindian.blogspot.ca/)

9.      Quesnel, Joseph. "First Nation Land Ownership Isn’t A Cure All." Winnipeg Sun

10.  Robson, Mia ."Top First Nations' success to be studied." Winnipeg Free Press.

11.  Soto, Hernando de. The mystery of capital: why capitalism triumphs in the West and fails everywhere else. New York: Basic Books, 2000.

12.  The Dawes Act." NebraskaStudies.Org. (http://www.nebraskastudies.org) Kulchyski, Peter .Class lecture, Indigenous Peoples, Land and Natural Resources. University of Winnipeg.

13.  The Redefinition of American Indian Property Rights in American Indian Reservations:  Stephan Cornell and Joseph P. Kalt. Harvard Project on American Indian Economic Development. (www.hpaied.org)

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[1]  Aboriginal Affairs and Northern Development Canada. "First Nation Property Ownership Act”. Available at: http://www.aandc-aadnc.gc.ca (accessed October 29, 2012).

[2]  Palmater, Pam. " National Chief Manny Jules: Shared Priorities, Self-Sufficiency & Other Policy Myths". Indigenous Nationhood. http://www.indigenousnationhood.blogspot.ca/ (accessed November 29, 2012).

[3] Al Jazeera. “News”. Television. ( accessed Nov 16, 2012).

[4] Duncan, I. "The Logic of Aboriginal Rights." Sage Publishing 3(3), (2003): 321-344.

[5] Alcantara, C. Individual Property Rights on Canadian Indian Reserves: The Historical Emergence of Certificates of Possession. (2003) Canadian Journal of Native Studies Vol 23(2) available at:  http://www2.brandonu.ca/library/cjns/23.2/cjnsv23no2_pg391-424.pdf ( accessed October 19, 2012).

 

[6] Quesnel, Joseph. "First Nation Land Ownership Isn’t A Cure All." Winnipeg Sun, November 23, 2012.

[7] Palmater, Pam. “Flanagan National Petroleum Ownership Act: Stop Big Oil Land Grab ". Indigenous Nationhood. http://www.indigenousnationhood.blogspot.ca/ (accessed November 29, 2012).

[8] Marx, Carl. “Chapter 26: The secret of primitive accumulation”. Capital. New York: Modern Library, 1906.

[9] Kulchyski, Peter . "Conflict and Resource Development." Class lecture, Indigenous Peoples, Land and Natural Resources from University of Winnipeg, Winnipeg, November 26, 2012.

[10] Robson, Mia . "Top First Nations' success to be studied." Winnipeg Free Press, September 2, 2010.

[11] Buffalo Point First Nation Website. Accessed 2 October 2012 at: http://www.buffalopoint-firstnation.ca/

[12] Cornell, S and Kalt J.P.”The Redefinition of American Indian Property Rights in American Indian Reservations. Harvard Project on American Indian Economic Development.” Available at: http://www.hpaied.org ( accessed 9 October 2012)

[13] "The Dawes Act." NebraskaStudies.Org. http://www.nebraskastudies.org (accessed October 12, 2012).

[14] Palmater, Pam. “Flanagan National Petroleum Ownership Act: Stop Big Oil Land Grab ". Indigenous Nationhood. http://www.indigenousnationhood.blogspot.ca/ (accessed November 29, 2012).

[15] Kulchyski, Peter ."Conflict and Resource Development."Class lecture, Indigenous Peoples, Land and Natural Resources from University of Winnipeg, Winnipeg, November 26, 2012.

[16] Aboriginal Affairs and Northern Development Canada. "First Nation Land Management Act”. Available at: http://www.aandc-aadnc.gc.ca (accessed October 29, 2012).