Re: "Opportunity or Temptation?" by Pamela Palmater (April 2010).
Alcantara, Christopher ; Flanagan, Tom ; Le Dressay, Andre 等
In her review of our book, Beyond the Indian Act: Restoring
Aboriginal Property Rights, Pamela Palmater neglected the
reviewer's responsibility of acquainting readers with the
book's argument. Here's what our book really says.
Prior to contact with Europeans, aboriginal people owned and
managed lands collectively, and also had individual rights to land and
personal possessions such as clothing, tools, weapons and animals. But
the Canadian government replaced these indigenous property rights with a
set of problematic quasi-property rights. As a result of the Indian Act,
First Nations are stuck with outdated property rights that hinder them
from using their lands and houses in economically efficient ways.
First Nations, however, are demonstrating ingenuity in
"escaping" the Indian Act. Our book focuses on one such
innovation, pioneered by the Nisga'a in British Columbia and now
being further developed by Manny Jules and other First Nations leaders.
Dubbed the First Nations Property Ownership Act by Jules, it involves
three important and separate steps.
First, for those First Nations that choose to opt into the act, the
Crown would transfer underlying title to their reserve lands to the
aboriginal group. This means First Nations, rather than the Crown, would
finally own reserve lands.
Second, once a First Nation has this underlying title, it could
choose to develop and implement more robust forms of collective and
individual property on some or all of its lands. It could subdivide its
reserve into individual allotments (which is already the case on some
reserves, albeit using the deficient forms of property found in the
Indian Act), or it could hold the lands in collective form, or do a
mixture of both. A First Nation could choose to have rental, leasehold,
fee simple or a combination of all three individual property rights on
its lands. Regardless of the mix of property regimes it chose, the
territorial integrity of the reserve would not be threatened because the
First Nation would continue to hold underlying title to reserve lands,
whether owned by aboriginal or non-aboriginal individuals.
Finally, aboriginal groups opting into the act would register their
title in a First Nations Torrens Registry, which experience has shown to
be the best way of documenting and protecting land titles. Doing so
would mitigate problems stemming from the Indian Act, such as high
transaction costs and insecurity of tenure.
The First Nations Property Ownership Act initiative is led by First
Nations people; it is voluntary rather than coercive and it combines the
economic benefits of efficient property rights with the safety of
territorial integrity. It is not a magic wand nor will it be appropriate
for all First Nations in Canada, but it can be an important tool for
those groups who want to move beyond the Indian Act, restore their
property rights and maximize the economic freedom of their citizens.
Christopher Alcantara, Tom Flanagan and Andre Le Dressay
Waterloo, Ontario, Calgary, Alberta, and
Kamloops, British Columbia
