I recently read yet another editorial in a national paper calling for a change to Aboriginal communities’ land rights – for their own good. The Conservative government has made a number of legislative moves in this direction, such as the First Nations Governance Act. Now some are lobbying the federal government to adopt the so-called First Nations Private Property Ownership Act. Each seeks to turn currently protected communal lands into private property that can be leveraged for economic gain. The real question, however, is whose gain?
A native Hawaiian Elder once said it well at a North American conference – the U.S. Constitution guarantees individuals rights of mobility to go anywhere, but we as Indigenous peoples want a guarantee of the right of immobility so that we don’t have to give up our lands and move from our ancestral territory.
In fact, the U.S. Constitution decrees that only the government may do business with the First Peoples. That’s because private citizens and companies were taking Native lands in crooked deals that swindled Indigenous peoples out of their lands. So, they threw this protection in, and created the Bureau of Indian Affairs. In Canada, the British North America Act created protections that were fleshed out in the federal Department of Indian Affairs and the Indian Act.
Today, we look at what happened when these protections were removed in the U.S. We see private citizens, banks and companies gaining control of Native lands, which created what is known as checkerboard reservations. You could own a house in your community and a non-Native house or business would be next door to you as the former “owner” lost their private right to the property. When we look at economic opportunities, with writs and other legal devices we have been able to use our interests to leverage for businesses even in the current realities.
In Canada, discussions are starting again to try to create private home ownership on First Nations land. This is at a time when the Special Rapporteur of the United Nations said that Aboriginal peoples live below the poverty line in Third World conditions. It is also the time when companies are the most interested in the land for resource development. So, when it comes to ownership of the land, will it be Native peoples or private interests that will benefit the most out of taking protections from the land and allow it to be leveraged and taken?
There also arises the issue of the special nature of trust that Aboriginal peoples collectively hold the land in for present and future generations of their peoples. Individuals cannot disenfranchise the collective rights of a group. The nature of their bundle of rights is small compared to that of the entire group of a collective-based society.
Finally, the notion of taxes must be addressed. By definition, only those who have the underlying title of land can tax. This is why Natives enjoy taxation benefits; they are the original titleholders. That they occupied the land for thousands of years is undisputed. Agreements and commitments were made to ensure rights such as these continued. So, you cannot tax those who you do not have the right to tax when the rights over the land are clear and collectively held.
Then there is Eeyou Istchee. With a modern land-claim agreement in the James Bay and Northern Quebec Agreement clearly defining land categories, how could privatization evolve or amend the nature of the three categories of our land? While there is an agreement on certain types of powers or uses in each category of land, there is not one for privatization and the taking of rights from the collective nature of the land ownership and protections.
Individual or private rights do not exist that could take what is not theirs to give.
