Opportunity or Temptation?

Plans for private property on reserves could cost First Nations their independence.

“Call it assimilation, call it integration, call it adaptation, call it whatever you want: it has to happen.” These words come straight from the pages of Tom Flanagan’s 2000 work First Nations? Second Thoughts and sum up his conviction that since First Nations in Canada are uncivilized and their governments produce “wasteful, destructive, familistic factionalism,” they should not be entitled to self-governing powers, special tax exemptions or federal funding, but should be assimilated and their reserves divided up into parcels of individually owned, “fee simple” lands available for sale to non-aboriginal people and corporations.

A professor in the University of Calgary’s political science department since 1968 and a former advisor to Stephen Harper, Flanagan has unsurprisingly generated considerable controversy with his policy recommendations regarding aboriginal peoples.

First Nations received a great deal of attention from both aboriginal leaders and academics for what some have called “flawed scholarship” unsupported by the literature. And when pushed on his views the following year, Flanagan defended the assimilation of aboriginal peoples and argued that the concept needed to be revisited because assimilation is “historically inevitable, is now largely accomplished, and will remain the basis of Canadian society.”

In a 2009 interview with the Aboriginal Peoples Television Network (APTN), however, he explained that his thoughts and views about aboriginal peoples and their rights and interests have evolved since he first wrote First Nations back in 2000.1

Read against this contentious background, Beyond the Indian Act: Restoring Aboriginal Property Rights, written by Flanagan with Christopher Alcantara and André Le Dressay, serves as a gauge of whether—and if so, how exactly—his views have changed.

As Beyond the Indian Act was co-authored by three individuals, their views are equally important when considering its overall message. The book is divided into three parts, each written by a different author—although they emphasize that they “collectively endorse the line of thought” contained in all three sections of the book.

Alcantara is a professor in the political science department at Wilfrid Laurier University. He has written other works with Flanagan on the subject of property rights on reserve and this previous work is incorporated into Beyond the Indian Act. Le Dressay has a PhD in economics and is the director of Fiscal Realities and the Tulo Centre of Indigenous Economics, a non-profit educational organization that aims to “create capacity to build the legal, administrative and technical frameworks for markets to work on indigenous lands.” Many of the issues in the reports prepared by Fiscal Realities Economists for their clients have also been incorporated into Beyond the Indian Act.

Manny Jules also endorses the ideas of this book. While not a contributing author, Jules wrote the foreword, also reproduced from presentations he has previously given. He is the chief commissioner of the First Nations Tax Commission and was also the chief of the Kamloops Indian Band in British Columbia for 16 years. Most importantly, at least for the purposes of this book, Jules is well known and respected in the aboriginal community. Despite the controversy that surrounds Flanagan, some aboriginal people will give this book a fair shake on the basis of Jules’s endorsement alone. In fact, Jules hails the book as representing not only his and his father’s original ideas, but also that of the “long journey of our leaders.” He explains that the book is about “pragmatism,” and has been part of an agenda he has been following his whole life.

Beyond the Indian Act is a mix of history, economics, law and public policy, and is largely intended for those with a background in public policy related to aboriginal peoples in Canada. Its primary purpose is to promote the enactment of federal legislation that the authors refer to as the First Nations Property Ownership Act. This act is intended to promote individual property ownership in reserve lands and provide First Nations (Indian Act bands) with the underlying title.2 This process is expected to be a voluntary one led by First Nations themselves. In this way, the authors hope to appeal to both the left (those who support aboriginal self-government) and the right (those who advocate for the assimilation of aboriginal peoples).

The authors attempt to sell their idea under the concept of a great “escape” from the Indian Act and the bureaucracy of Indian and Northern Affairs Canada. But while this all sounds tempting, a closer reading of their proposal and its potential implications for First Nations gives me second thoughts.

Part One deals with the concept of property and the features of property rights under the Indian Act. Flanagan asserts that individual property rights are fundamental to a market economy, and that the only threat to democratic market economies within First Nations has been their “socialist” ideals. In his view, individual property rights, which contribute to individual material wealth, are far superior to collective concepts of property, which are concerned about communal well-being.

Nevertheless, Flanagan foresees that some might compare Beyond the Indian Act’s plan for property reform on Indian reserves to the epic failure of the 1887 Dawes Act in the United States. In a nutshell, the Dawes Act was an instrument designed to assimilate Indians into the majority population by introducing mandatory private ownership on reserve lands. It was hoped that the tribes would be broken up as social units, individual initiative would be encouraged, the cost of Indian administration would be reduced and unused land would be opened up for white settlers. The Dawes Act resulted in the loss of thousands of hectares of land and subsequent legislation was necessary to stop the further loss of land and recover some of what had been lost. Flanagan argues, however, that “what we are putting forward in this book is very different … We suggest legislating a regime of fee-simple ownership that First Nations can opt into voluntarily.”

The following section, written by Alcantara, describes the historical and legal characteristics of Indian property rights in Canada. Alcantara explains that Europeans saw Indians as not having any concepts of property and believed that, in order to civilize them, they would have to be forced to adopt individualized concepts of property—a coercive agenda he rejects. Yet individual ownership of reserve lands is exactly what he is advocating, albeit on a “voluntary” basis. (One wonders how voluntary such a decision might be, if all Indian bands are as dysfunctional and their leaders as corrupt as Flanagan seems to think.) Alcantara also argues that the commercial, recreational and residential aspect of First Nations land is their greatest economic asset and should be used by individuals to lever economic activity even if, as the book later explains, that means sale to non-aboriginal people.

Le Dressay’s section highlights the difficulties associated with the current reserve-based property system, such as high transaction costs and time delays on economic development. He argues that the Indian Act prevented market economies on reserve and that capitalism requires appropriate legal, administrative and institutional frameworks to be effective.

In so doing, he makes several generalizations and oversimplifications not necessarily supported by the literature. For example, he argues that “First Nations communities are plagued by low rates of private investment and, as a result, suffer from high unemployment and a host of social ills.” But the reasons behind the current social ills faced by aboriginal peoples are far more complex than what is suggested here. These social ills originate with colonial laws and assimilatory rules and policies that denied aboriginal peoples access to their traditional territories, natural resources, means of subsistence, laws, customs and governance systems (see, for example, the 1996 report of the Royal Commission on Aboriginal Peoples).

Le Dressay goes on to argue that implementing taxes on reserves for things such as property will attract private investment, which will fund infrastructure. His assumption is that this will make band governments and individuals accountable and, furthermore, taxation “is how every other Canadian community grows.”

(Very little attention is paid to the large number of businesses that are attracted to First Nations because of the different taxation rules and other attractive bylaws, however, such as those in New Brunswick allowing businesses to operate on Sunday.)

Le Dressay cites precedent in the suite of 1990s and 2000s legislation that gave signatory First Nations the option to assume this kind of authority. Examples include the First Nations Land Management Act, which allowed signatory First Nations to opt out of various land provisions of the Indian Act, and the collection of GST on reserve under the authority of the First Nations Goods and Services Tax Act, to help fund First Nations governments. Discussing the Westbank First Nation, which has signed on to many of these acts, Le Dressay argues that they have already “almost escaped the Indian Act.”

Le Dressay further argues that opting into this suite of legislation will speed up land transactions on reserve needed for economic development, and that this reduced transaction time will attract private investment. However, the glaring fact remains that the majority of First Nations have chosen not to sign on to existing optional legislation: only 58 out of the more than 615 First Nations in Canada are participants. One is left wondering, then, if these legislative initiatives were not simply local projects of specific First Nations and do not reflect the actual needs or goals of First Nations in general.

This phenomenon is significant to the core arguments of this book, and its causes are inadequately addressed. The reason given for why more First Nations have not embarked upon a system of individual property rights is time—that is, it takes too long to obtain secure underlying title. But there is little research included in this section to support such a conclusion. Indeed, it has taken many years for the Conne River Mi’kmaq people and the Innu to negotiate their standing or legal recognition in Canada, but at the end of the day they still opted to become Indian Act bands, with reserve lands and all the rules that come with that status.

This book seems more about trying to solicit support for the organizations that resulted from the legislation of the 1990s and 2000s than for any radical new idea. In fact, the book concludes by affirming that “there is little doubt that this proposal is a continuation of the First Nations–led initiatives of the 1990’s.” The overall goal is for First Nations to “catch up to the modern Canadian property rights legal framework.” And, if First Nations require any assistance in catching up to the modern world, the book suggests that they use the services of Le Dressay’s Tulo Centre of Indigenous Economics. (Located in Jules’s home community of Kamloops, this centre was created out of a First Nations Tax Commission project he chaired.) It should come as no surprise that one of the keys to success of the authors’ proposal for the First Nations Property Ownership Act will be to create additional centralized institutions, to take over the new jurisdiction it also creates. Yet little analysis is dedicated to whether the current institutions benefit a majority of First Nations or whether additional institutions are necessary.

I also note that there is shamefully little attention paid to the legal, political and social realities of aboriginal communities. The authors’ proposal seems to beg First Nations to ignore their culture, identity, rights and responsibilities for their future generations and focus solely on the pursuit of individualized material wealth. For example, there is hardly a mention made of Supreme Court of Canada decisions that detail the fiduciary obligations owed by the Crown to aboriginal peoples and the limits to the ways in which First Nation lands can be used. Similarly, section 35 of the Constitution Act, 1982 is a significant promise to aboriginal peoples to both recognize and protect their aboriginal and treaty rights. Perhaps most importantly, section 35 is a constitutional promise to aboriginal peoples to protect their distinctive cultures and identities for future generations. Since land is critical to the identity of First Nations as well as to the maintenance of their cultures and communities, it seems illogical to suggest that First Nations are best served by dividing up their reserves into individually owned parcels of land available for sale to non-aboriginal people in the name of economic development.

In the end, if these authors want their book to be taken seriously and engender constructive policy debate, they ought to be more forthcoming about the potential negative impacts of what they are proposing. This proposal asks aboriginal peoples, yet again, to abandon their identities and their orthodoxies in favour of those more reflective of Flanagan’s right-wing view of what it means to be a Canadian—and, in the process, to make their lands available for sale to non-aboriginal peoples. The potential for entire reserve land bases to be lost under this proposal is significant given the high rates of extreme poverty in First Nations (impoverished families might sell land for basic necessities). The retention of as-yet-­undetermined jurisdiction over those lands is hardly a comfort.

However, the real message of this book reflects Flanagan’s obsession with turning First Nations into “regular” Canadians. In Beyond the Indian Act, Flanagan argues that aboriginal people must abandon any “primitive communist” fantasies they have about communal property rights and adopt “evolved” ways of thinking about property—that is, to catch up to the rest of Canada. This sounds similar to his arguments in First Nations that aboriginal societies in Canada were not civilized, that assimilation of aboriginal peoples had to happen and that one of the ways to achieve assimilation was for aboriginal peoples to abandon notions of communal property and implement a system of individual property rights.

I fail to see how this latest proposal has “evolved” to any great degree from what Flanagan proposed in First Nations (first or second edition), or how it differs in any significant way from the failed Dawes Act, except for the hope that implementation of individual property rights will be voluntary: the erosion of aboriginal territory likely to accompany privatization of reserve property would ultimately lead toward full cultural and political assimilation.

In that sense, Beyond the Indian Act just repackages what Flanagan describes in the second edition of First Nations as the Canadian majority’s preferred course of action toward aboriginals: “repeal the Indian Act, make a once-for-all settlement of treaty obligations, shut down the reserves, and encourage education, participation in the workforce, home ownership, and other attributes of modern Canadian citizenship.” And that assimilatory agenda makes the authors’ failure to acknowledge their proposal’s potential negative consequences all the more acute.

  1. Flanagan has since published a second edition of First Nations that adds a chapter but leaves the original work untouched. The additional chapter gives a brief review of legal and political developments, but his continued description of Indian bands as “familistic factionalism,” his promotion of reserves being divided into parcels of fee simple land and his continued advocacy of the assimilation of aboriginal peoples do not demonstrate any real evolution from his first edition. 

  2. The term “First Nations” as used throughout this review refers to Indian bands created pursuant to the Indian Act and does not refer to the traditional aboriginal nations, such as the Mi’kmaq, Cree or Mohawk.