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There is a lot of buzz in the media and online about the federal government’s plan to pass legislation that would create private property rights on Canadian Indian reserves.
Unsurprisingly perhaps, much of this buzz has been negative, with commentators expressing fear and doubt about the merits of the proposal. Much of this apprehension, however, is based on misconceptions about what actually is being proposed.
The following are the top five myths about the proposed First Nations Property Ownership Act:
Myth 1: Indigenous peoples don’t need this legislation. The status quo is fine because doing business on-reserve is the same as doing business off-reserve.
In fact, doing business on-reserve is nothing like doing business off-reserve. The Indian Act imposes significant transaction costs on investors, discouraging them from investing on-reserve. Not only is economic development stymied, so too is the ability of band members to build and own their own homes because the Indian Act prevents band members from using their existing property rights as security for a loan or mortgage.
Myth 2: The legislation will result in each reserve being allotted entirely to individual members.
Although this is possible, the legislation will actually give each First Nation the opportunity to decide how much and which of its lands it will transform into individual private ownership. Most bands will probably be cautious at first and will allot only 5 to 10 per cent of their land to so-called “fee-simple” ownership, the type of property right that most Canadians currently enjoy when they buy property off-reserve. This probably is a good strategy given that the policy reform is new and untested.
Myth 3: First Nations already own their reserve land and so we don’t need this legislation.
In fact, title to reserve land is vested in the Crown. Ideally, the proposed legislation would transfer underlying title to the First Nations but the reality is that such a transfer is impossible because it requires a constitutional amendment. Instead, the legislation will accomplish the next best thing. It will transfer three important powers related to underlying title to each First Nation: jurisdiction (the band will have full authority to manage and administer these lands); the expropriation power (only the band, and not the Crown, will be able to expropriate reserve lands); and the reversionary power (individual fee-simple lands will revert to the band should a death without a will occur).
For the rest of this article, please go to the Toronto Star website: http://www.thestar.com/opinion/editorialopinion/article/1243624–private-property-on-reserves-5-myths