This paper responds to Susan Campbell’s “On ‘Modest Proposals’ to Further Reduce the Aboriginal Landbase by Privatizing Reserve Land” that appeared in The Canadian Journal of Native Studies XXVII: 2 (2007). Specifically, this paper suggests that her characterization of Alcantara’s work as supporting the privatization of Reserve lands is inaccurate. Instead, the original article and the ones published afterwards argue that it is possible to use market-based approaches to improve economic development conditions on Canadian Indian Reserves. To do so, however, does not require the privatization of Reserve lands

Alcantara, Christopher

English

Wilfrid Laurier University

Wilfrid Laurier University Scholars Commons @ Laurier Political Science Faculty Publications Political Science 2008 “Privatize Reserve Land? No. Improve Economic Development Conditions on Canadian Indian Reserves? Yes.” Christopher Alcantara Wilfrid Laurier University, calcantara@wlu.ca Follow this and additional works at: https://scholars.wlu.ca/poli_faculty Recommended Citation Alcantara, Christopher, "“Privatize Reserve Land? No. Improve Economic Development Conditions on Canadian Indian Reserves? Yes.”" (2008). Political Science Faculty Publications. 5. https://scholars.wlu.ca/poli_faculty/5 This Article is brought to you for free and open access by the Political Science at Scholars Commons @ Laurier. It has been accepted for inclusion in Political Science Faculty Publications by an authorized administrator of Scholars Commons @ Laurier. For more information, please contact scholarscommons@wlu.ca.    The Canadian Journal of Native Studies XXVIII, 2(2008):421-427. ND DISCUSSION A DEBATERP“ IVA  E R ERTIZ ES    I P OVEA ? MVE L NDS NO. R   V L E T ON ONON M N DEC OMIC DE E OP T CON I I SA D  I N A NC N IAN I D A RESER E  .V S ”? YES e A a taChristoph r lc n raDepartment of Political ScienceWilfrid Laurier UniversityWaterloo, OntarioCanada, N2L 3C5calcantara@wlu.cas r   RAb t act / ésuméThis paper responds to Susan Campbell’s “On ‘Modest Proposals’ toFurther Reduce the Aboriginal Landbase by Privatizing Reserve Land”that appeared in The Canadian Journal of Native Studies XXVII: 2 (2007).Specifically, this paper suggests that her characterization of Alcantara’swork as supporting the privatization of Reserve lands is inaccurate. In-stead, the original article and the ones published afterwards argue thatit is possible to use market-based approaches to improve economicdevelopment conditions on Canadian Indian Reserves. To do so, how-ever, does not require the privatization of Reserve lands.L’auteur répond à l’article de Susan Campbell intitulé « On ‘ModestProposals’ to Further Reduce the Aboriginal Landbase by PrivatizingReserve Land » qui est paru dans la Revue canadienne des étudesautochtones (XXVII, 2, 2007). Plus particulièrement, le présent articlesoutient que la caractérisation par S. Campbell du travail de C. Alcantaracomme un soutien à la privatisation des terres de réserve est inexacte.Au contraire, l’article original et les autres publiés subséquemmentmettent de l’avant qu’il est possible d’avoir recours à des approchesaxées sur le marché pour améliorer les conditions du développementéconomique des réserves indiennes au Canada. Pour y arriver, par contre,il n’est pas nécessaire de privatiser les terres de réserve.422   Christopher AlcantaraIn a recent edition of The Canadian Journal of Native Studies, SusanCampbell argues that my article, “Individual Property Rights on Cana-dian Indian Reserves,” advocates for the privatization of all Aboriginalreserve lands in Canada. To show that privatization would be disastrous,she suggests that the Dawes Act in the United States had extremelynegative consequences for its Indian tribes. Based on these experiences,she suggests Aboriginal peoples and policy makers in Canada shouldoppose and reject all market-based approaches to on-reserve economicdevelopment (Campbell, 2007: 34).Unfortunately, she has misunderstood and mischaracterized my ar-guments as they relate to individual property rights and economic de-velopment on Canadian Indian reserves. Indeed, in none of my publica-tions do I suggest that Canadian Indian reserves should be privatized.Rather, my work acknowledges that the privatization of Indian reservelands as it occurred under the Dawes Act was disastrous. Nonetheless,the failure of the Dawes Act in the United States should not automati-cally lead to a rejection of all market-based approaches to Aboriginaleconomic development. Instead, my work suggests that it is possiblefor First Nations interested in participating in the market-based economyof Canada to do so successfully without having to sacrifice their corevalues and beliefs, including those relating to land tenure.To defend these arguments, this paper is divided into three sec-tions. The first analyzes several statements in Campbell’s article thatsupposedly indicate that I advocate the privatization of reserve lands.The second section reviews the key findings of my work on individualproperty rights on Canadian Indian reserves to show how existing prop-erty rights regimes have greatly hampered Aboriginal efforts to engagein economic development. The final section discusses several ways thatAboriginal groups interested in participating in the Canadian economycan improve their prospects for successful economic development. Noneof these suggestions advocate or require the privatization of reservelands.b r  rA o iginal P t  h  an  rd at noper y Rig ts P ivatiz ioIn my original CJNS article, published in 2003, I wrote that “the CP[Certificates of Possession] system gives individual Indians living on re-serves property rights that fall somewhere between fee simple [i.e. out-right ownership] and life estate interests.” Campbell (2007: 221) quotesthis statement before providing the following commentary: “Alcantaraskated over the qualitative difference between reserves as they are nowand as they would be—or cease to be—if privatized” (the emphasis isCampbell’s). Campbell (2007: 221) also states that “Alcantara impliedPrivatize Reserve Lands? No. 423that privatization of reserve land would be a modest step in the rightdirection, one that might even be couched in terms compatible withAboriginal self-government, or more accurately ‘self-administration.’” Heranalysis of my original article, however, is inaccurate. Neither my origi-nal quote above, nor any other statements in my original article, impliedthat privatization of reserve lands should occur. Instead, the article sim-ply described how the CP system worked and what historical condi-tions facilitated its creation. The original paper also offered some sug-gestions for reforming the CP system, which included modifying the In-dian Act to deal with the division of matrimonial real property, givingband councils greater control over the granting of leases on Indian re-serves, and removing the federal Department of Indian Affairs from CPtransactions (Alcantara, 2003: 419-420).  t AClarifying he   er ug ment: Th   n ian AI d ct Cr eseatg can  ag o  n-Res v  co iSi nifi t Dr n o er e E nom cpelDev o mentSo what do I in fact argue? Here, it would be helpful to reflect onsome of the findings that Tom Flanagan and I have produced since thepublication of the first two articles cited by Campbell (Alcantara, 2003;Flanagan and Alcantara, 2004). The puzzle that our research is trying toaddress is the persistence of poverty on many Canadian Indian reserves.Based on empirical work completed on reserves in British Columbia,Alberta, and Ontario, we suggest that a major source of drag on on-reserve economic development is the Indian Act. According to the act,all lands reserved for Indians are held by the Crown to be used by Indianbands to occupy and live on. In practice, however, the bands, throughtheir band councils, exercise primary usage and occupancy rights overall reserve lands (Alcantara, 2007: 424). Band members can gain indi-vidual possession of reserve lands through three mechanisms: custom-ary rights, certificates of possession (CPs), and leases. Under custom-ary rights, band members can take possession of a tract of land eitherthrough a band council resolution recognizing their ownership, or throughinformal recognition by community members. In either case, however,the individual’s customary rights are not legally enforceable in Canadiancourts, meaning that the use of said lands is at the discretion of theband council (Flanagan and Alcantara, 2006).The second form of property right under the Indian Act is the certifi-cate of possession. CPs provide a stronger form of property right toband members because they have a statutory basis. Once granted, CPsare enforceable in Canadian courts, meaning that band councils andother individuals cannot interfere with the band member’s use of her424   Christopher Alcantaraland. The main weakness of CPs, however, is the significant transactioncosts stemming from the time it takes to complete CP transactions. Anallotment usually requires the approval of the band council and the Min-ister of Indian and Northern Affairs. Approval from INAC can be particu-larly time consuming, with one case at Six Nations, near Brantford,Ontario, taking ten years to complete. Transfers and wills can also betime consuming because they require the approval of INAC before theycan be completed (Alcantara, 2005).The final individual property right is the lease, which is quite similarto a lease off-reserve. Indian Act leases, unlike the other property re-gimes, are fully tradable and can be used as collateral for loans andmortgages.  First Nations in British Columbia and Alberta have success-fully used leases to construct golf courses, commercial developments,and residential developments on their reserve lands. Unfortunately, leasesalso suffer from significant transaction costs since individuals desiringleases must seek the approval of the band council and/or the Minister ofIndian Affairs, depending on the type of lease. As well, some of the leasesare administered by Indian Affairs, thus weakening tribal sovereignty.Finally, the courts have called into question the economic viability ofsuch leases. In 2000, the Supreme Court of Canada in Musqueam v.Glass ruled that the unique features of reserve land may result in reservelands having lower land values than their off-reserve equivalents. As aresult, First Nations governments and individuals may have to chargelower rents to off-reserve residents who lease their lands (Flanagan andAlcantara, 2005). u o ni sO r S lut oIn light of these findings, perhaps surprisingly to Campbell and oth-ers, we do not advocate for the top-down imposition of fee simple titlewrit large and the immediate and universal abolition of Indian reservesin Canada. Indeed, we are highly cognizant of the failure that privatizationwrought on American Indian reservations during the Dawes Act era.Building on the lessons from that time period, we instead offer somepractical suggestions for how interested First Nations might reduce thedrag on development that the Indian Act has imposed on them.  Forinstance, with respect to customary rights, we suggest that the bandsfully document their customary rights through formalized surveys andrecording practices, appoint independent committees to oversee theiradministration, and create rules or foster norms that require band coun-cils to treat these customary rights as legally binding contracts. We alsosuggest that First Nations consider creating independent dispute reso-lution mechanisms or First Nation Courts for dealing with disputes relat-Privatize Reserve Lands? No. 425ing to customary rights (Flanagan and Alcantara, 2006: 155-157).With respect to CPs, I suggest in an article published in CanadianJournal of Law and Society that the Department of Indian and NorthernAffairs Canada be removed from CP transactions. To do so would re-quire using ss. 53 and 60 of the Indian Act, which allow the Governor-in-Council to assign control and management of reserve lands to bandcouncils, or to use other institutional mechanisms like the First NationsLand Management Act (FNLMA) or negotiated self-government agree-ments (Alcantara, 2005: 199-200; Alcantara, 2008a). Indeed, my researchon the FNLMA found that the land codes emerging out of the legislationcould significantly reduce transaction costs because they allowed FirstNations to exit the land management provisions of the Indian Act. Quot-ing economic historian Leonard Carlson, an authority on the Dawes Act,I suggest that the FNLMA was a positive development for First Nationsinterested in pursuing market-based economic development because itallowed Aboriginal peoples “to adapt or retain those features of tradi-tional culture that they chose and to accept or reject ideas and valuestaken from White society with a relatively small amount of interferencefrom federal agents” (Carlson, 1981: 176-177, quoted in Alcantara, 2007:431).Furthermore, we do not suggest that all First Nations in Canadashould adopt these proposals. Instead, “we offer a few suggestions forhow customary rights [and the other property regimes] could be madeto work better for those First Nations that find them to be a good fit withtheir culture but who also wish to participate successfully in the moderneconomy” (Flanagan and Alcantara, 2006: 155). In a recent article of mine(Alcantara, 2008b), I suggest that Aboriginal and federal policy makersadopt the principle of subsidiarity when engaging in Aboriginal policyreform. In essence, using the FNLMA as a template, different First Na-tions should consider negotiating with the federal government to estab-lish locally-sensitive framework legislation on the issue of individual prop-erty rights. Currently, First Nations have access to three types of landmanagement regimes: the status quo of the Indian Act as describedabove, negotiated self-government agreements, and the FNLMA. Thelatter regime is most interesting because of its potential for solving notonly the land management problem, but also other problems relating toAboriginal public policy in Canada. The FNLMA came about as a resultof fourteen First Nations who approached the federal government tocreate a new legislative framework. They hoped to use this frameworkto exit the relevant provisions of the Indian Act to create their own landmanagement regimes. One could imagine other First Nations collectivelynegotiating alternative legislative frameworks with the federal govern-426   Christopher Alcantarament that were more relevant to their particular needs.n nCo clusioCampbell’s article is correct to cast significant doubt on sugges-tions that Canada emulate the privatization model adopted in the UnitedStates. Unfortunately, she is incorrect to suggest that my research ad-vocates this position. Instead, my work identifies several significant ob-stacles to successful Aboriginal economic development on CanadianIndian reserves and offers a number of market-based solutions that FirstNations should consider if they are interested in participating in the Ca-nadian economy. Further work is needed on whether market-based ap-proaches can be integrated with Aboriginal traditional values to pro-duce what David Newhouse calls “red capitalism” (Newhouse, 2000).My work, so far, suggests that this integration is possible and that theprivatization of Canadian reserve lands is neither necessary nor desir-able.eRef rencesAlcantara, Christopher    2003 “Individual Property Rights on Canadian Indian Reserves:the Historical Emergence of Jurisprudence of Certificatesof Possession.” Canadian Journal of Native Studies, 23:2,391-424.    2005 “Certificates of Possession and First Nations Housing:A Case Study of the Six Nations Housing Program.” Ca-nadian Journal of Law and Society, 20:2, 183-205.    2007 “Reduce Transaction Costs? Yes. Strengthen PropertyRights? Maybe: The First Nations Land Management Actand Economic Development on Canadian Indian Re-serves.” Public Choice, 132:3-4, 421-432.    2008a “To Treaty or Not To Treaty? Aboriginal Peoples and Com-prehensive Land Claims Negotiations in Canada.”Publius: The Journal of Federalism, 28:2, 343-369.    2008b “Aboriginal Policy Reform and the Subsidiarity Principle:A Case Study of the Division of Matrimonial Real Prop-erty on Canadian Indian Reserves.” Canadian PublicAdministration, 51:2, 317-333.Privatize Reserve Lands? No. 427Campbell, Susan    2007 “On ‘Modest Proposals’ to Further Reduce the Aborigi-nal LandBase by Privatizing Reserve Land.” CanadianJournal of Native Studies, 26:2, 219-246.Carlson, Leonard    1981 Indians, Bureaucrats, and Land: The Dawes Act and theDecline of Indian Farming. Westport: Greenwood Press.Flanagan, Tom & Christopher Alcantara    2004 “Individual Property Rights on Canadian Indian Re-serves.” Queen’s Law Journal, 29:2, 489-532.    2005 “Individual Property Rights on Canadian Indian Reserves:A Review of the Jurisprudence.” Alberta Law Review,42:4. 1019-1046.    2006 “Customary Land Rights on Canadian Indian Reserves,”Self-Determination: The Other Path for Native Americans.T. Anderson, B. Benson, and T. Flanagan, (eds.). StanfordUniversity Press.Newhouse, David    2000 “Modern Aboriginal Economies: Capitalism with a RedFace.” Journal of Aboriginal Economic Development, 1:2.

“Privatize Reserve Land? No. Improve Economic Development Conditions on Canadian Indian Reserves? Yes.”

Scholars Commons

https://scholars.wlu.ca/cgi/viewcontent.cgi?article=1004&amp;context=poli_faculty

“Privatize Reserve Land? No. Improve Economic Development Conditions on Canadian Indian Reserves? Yes.”

Abstract

Similar works

Full text

Available Versions

Wilfrid Laurier University

Scholars Commons