The Rise of the First Nations Land Management Regime in Canada: A Critical Analysis
Part I: First Nations Land Management Foundations #
During the 2015 federal election campaign, the Liberal Party of Canada campaigned on a platform of significant commitments to Indigenous peoples, including the promise to “renew the relationship between Canada and Indigenous Peoples.” But tellingly, they framed their platform as “both a right thing to do and a surefire way to economic growth.” In the emerging era of sectoral self-governance, the First Nations Land Management Regime has become a key feature not only in the federal government’s notion of the “right thing,” but also their plans to chip away at the Indian Act and make First Nations more “economically independent.” Of course, this economic growth or independence does not include a redistribution of land or resources, rather it is an expectation that First Nations should support their members through economic activities exclusively on reserve lands.
Despite this concern, the First Nations Land Management Regime has grown considerably with many communities applying and being accepted into the process each year. Indeed, we do not outright reject the positive possibilities for communities taking over the management of reserve lands from the federal government and developing their own land management policies.
However, it is important to analyze the First Nations Land Management Regime within the larger context of alienation from our traditional territories through market forces and colonial policies.
In our view, as treaty people, the threat of the First Nations Land
Management Regime is that it overwrites our treaty history and
obligations. Beyond this, for people whose nations do not have
historical or contemporary treaties with the Crown, the threat of the
politics of distraction is also at play in that we believe we should be
having a larger, more robust conversation with the Crown regarding
jurisdiction and management of lands and resources in Canada.
It is important to state at the outset that the Indian Act, the First
Nations Land Management Act, and the Framework Agreement on First
Nation Land Management make no substantive reference to treaties. This
regime is about a very limited type of self governance and does not
substantively implement the self-determination envisioned by our
ancestors through treaty or inherent rights. This aforementioned point
conforms to much government policy and was highlighted by The Royal Commission on Aboriginal Peoples
in 1996. The report stated that “it is almost as if Canada deliberately allowed itself to forget the principal constitutional mechanism by which the nation status of Indian communities is recognized in domestic law.” This includes the Numbered Treaties, the eleven agreements that span Ontario, the Plains and into B.C. and the Northwest Territories, negotiated between 1871 - 1921.
One of the goals of the Numbered Treaties, from an Indigenous perspective, is to protect Indigenous territories and livelihoods.
However, we know that the hegemonic Canadian perspective of the Numbered Treaties (and all other treaties into the very recent present) is that they are land surrenders to the Crown. For those without agreements with the Crown, who refer to their land as ‘unceded’, the scope of this regime is obviously very limited.
In this report, we first review the political economy of the regime, since economic development is a major motivation for both First Nations and Canada.
Though, we believe the current economic system we are working within will never provide robust freedom for Indigenous peoples, we also believe that we should not outright reject efforts to ensure fewer of our people live in poverty.
Second, since this report is meant to be a resource for communities, we critically examine the process of creating and ratifying a Land Code. Much of the criticism of FNLMA stems from the ratification process and whether it constitutes proper consent. Later we write about the implications of this regime for Treaty and non-Treaty First Nations, as well as the larger landscape of Indigenous governance in Canada.
Political Economy of the First Nations Land Management Regime #
Current and proposed Canadian legislation, including the voluntary First Nations Land Management Act and proposals for First Nations private property ownership, seek to alter the relationship communities have to their reserve land bases by offering a mechanism for First Nations to take over the ’everyday’ management of those lands. Under a community developed Land Code, First Nations are able to act at the “speed of business”, set terms for land related transactions, business licencing, zoning, and draft their own land management bylaws. This opens up reserve lands to further development (of course this is one of the main motivations for First Nations to enter the process). Currently, under the Indian Act, First Nations have to acquire permission from the Minister of Crown Indigenous Relations to allow commercial development of reserve lands. In a three-part review of the First Nations Land Management Regime, KPMG found that the Framework Agreement generates positive benefits for Canada, meaning that overall, the Regime has contributed to the Canadian economy.
However, there are currently no studies that prove whether the First Nations Land Management Regime has reduced poverty on reserve or whether increased overall wealth of those First Nations has contributed to better socio-economic indicators, such as health, language renewal, or cultural revitalization.
Through the First Nations Land Management Regime, the federal government
offloads fiscal, fiduciary, and environmental responsibilities and
serves to benefit from the increased business capacity of First Nations.
Though KPMG found that no First Nations that entered the process would
choose to go back to land management under the Indian Act (which is not actually an option),
First Nations who have ratified a Land Code have critiqued the cost and
effort bore solely by the First Nation to develop land policies and
laws, as well as higher insurance borne solely by First Nations to cover
extended liabilities with regards to environmental management. Though
the federal government is responsible for
environmental damage and contamination that occurred before the transfer
of land management, a First Nation assumes liability and responsibility
for any environmental issues that occur after a Land Code takes
effect.
Additionally, though First Nations receive funding to hire a land manager or other such staff to contribute to the development and enforcement of laws under the Land Code, including environmental assessment laws, these funding levels are set out in the Individual Agreement. Operational funding to support the implementation of a Land Code and corresponding laws is generally agreed to every five years for a fixed amount, so it is not guaranteed that a First Nation will always be able to access this funding or to what extent.
Who Benefits from Reserve Marketization? #
Ultimately, the aim of the First Nations Land Management Act is to put reserve land on the global market, subjecting communities to increased market forces. Under the Framework Agreement First Nations report an increase in businesses owned by external partners. The political ideology of neoliberalism, counter to the tenets of many traditional Indigenous economic philosophies, supports the deregulation of society through a consolidation of power and profit for corporations, over human, community needs (not to mention needs of the land). Some Indigenous scholars identify neoliberalism as a new form of colonization affecting Indigenous peoples, which can lead to increasing social inequality. Instead of the social, political, cultural, legal and economic spheres interacting in balance within a society, neoliberalism embeds those spheres in, and under, the economic sphere, and they are seen primarily through that lens.
Many non-Indigenous scholars, however, advocate for neoliberal conceptions of capital accumulation and corresponding institutions of governance for Indigenous peoples as an answer to “undeveloped” economies. Tom Flanagan, for example, argues that Indigenous peoples' “problem” lies in a lack of private property and that “as quickly as possible, Indian bands should receive full ownership of their reserves, with the right to subdivide, mortgage, sell, and otherwise dispose of their assets, including buildings, lands, and all natural resources”. Similarly, Hernando De Soto articulates the need for private property systems in which private property rights are enforced. From this perspective, land can be used as collateral for economic enterprise. Manny Jules argues that Indigenous peoples historically had property rights, and so, others suggest a “reinstatement” of private property rights for First Nations would enable effective integration into the Canadian economy.
Since the publication of Beyond the Indian Act: Restoring Aboriginal Property Rights, there have been few published Indigenous nation-specific rebuttals or suggested alternatives that account for a continuous relationship to territory. Flanagan’s main argument within that text is that First Nations must convert their reserve lands to fee-simple in order to reach economic independence. This led to the First Nations Property Ownership Proposal. In 2010, Neskie, Manuel and Emma Feltes wrote a rebuttal to the campaign for the First Nations Property Ownership Proposal arguing that it undermines the collective title held by First Nations people and would effectively result in extinguishment of title. In 2014, Shiri Pasternak argued that First Nations Property Ownership legislation was “discursively framed to acknowledge Indigenous land rights while the bill simultaneously introduces contentious measures to individualize and municipalize the quasi-communal land holding of reserves.” Though the First Nations Property Ownership legislation has not been introduced by the federal government, some of the same logics are at play in the First Nations Land Management Regime.
We have seen a shift to targeting individual First Nations, rather than blanket legislation when it comes to opening up reserve lands for development.
It is also important to understand the potential reasons why the federal government may be interested in the Regime. One reason could be related to rendering void the fiduciary responsibility that the federal government holds to First Nations related to the aspects included in the regime. A second reason could be to open up lands to market interests for more expedient resource development. Finally, the Framework Agreement has been shown to generate profits for Canada.
In a case study research project it was found that for five First Nation’s economic projects examined (which they called the “big winners”), the Framework Agreement provides profits to Canada of “between roughly $270 million and 1.4 billion” over the anticipated lifetime of the economic development project.
This increased revenue generated for Canada is due to First Nation’s ability to “work at the speed of business,” meaning it is easier for a First Nation to open businesses on-reserve, work with industry and forge business relationships with industry which lead to the development of reserve land.
The increased profits derived from reserve land eventually flow into the Canadian economy, thereby showing why Canada remains invested in removing barriers to business on-reserve. Study results show that First Nations operating within the First Nations Land Management Act report an increase in businesses owned by external partners. But, importantly, First Nations need to be aware of how the increase in market control may negatively impact their lands and nations.
We find ourselves at a similar juncture faced by First Nations people in the 1960’s: we are being forced to defend the arcane nature of the Indian Act in order to protect our current rights.
In 1969, the federal government authored the Statement of the Government of Canada on Indian Policy, which sought to effectively to abolish the Indian Act. In the Unjust Society, Harold Cardinal calls this a “thinly disguised programme of extermination through assimilation”.
Limitations of Indian Act Settler Colonial Governance #
It should be noted that it is band councils elected under the Indian Act that have the power to opt into the First Nations Land Management Regime. Though it is generally agreed upon that First Nations need to able to exert more jurisdiction and control over governance, we are being offered this increased control through an imposed governance system, since Canada generally accepts those bestowed power through the Indian Act as our official representatives. As we know, the Indian Act, 1876 had two main purposes, building on the Gradual Civilization and Enfranchisement Acts that came before it: 1) to assimilate First Nation individuals until they qualified for enfranchisement into the Canadian body politic; and 2) to force an exclusively male, British- style municipal type government onto First Nation communities. Additionally, the majority of chiefs and councillors elected under the Indian Act are men. Today, First Nations women are also more likely to be urban–having been forced off reserve after successive discriminatory federal laws–and therefore while they may be able to vote as band members to either accept or deny a Land Code put forward by their leadership, they serve to benefit less from economic activities on reserve.
Finally, it is important to acknowledge that First Nations in Canada
have a diversity of traditional and elected governance systems.
Following arrests of Wet’suwet’en and supporters blocking pre-
construction activities for the Coastal Gaslink pipeline, Trevor Jang
writes “the band councils are responsible for managing reserve lands,
while the hereditary system is what governed the broader traditional
territory which is what the pipeline is proposed to cross.”
Similarly, nêhiyaw scholar Sylvia McAdam writes that “The nêhiyawak
believe the women have jurisdiction over land
and water, which is contrary to the processes of land claims which are
primarily male-dominated chiefs — elected according to the imposed
Indian Act”.
Given this state of affairs, there is an important point to make here: many First Nations who have implemented a Land Code tout the ability to create their own laws as a major benefit, but we question to what extent these reserve land management laws correspond to Indigenous legal systems.
This alienation of Indigenous peoples from those legal systems is wrapped up in the dynamics and logics of settler colonialism. We use the term settler-colonial to refer to the ongoing subjugation that Indigenous peoples face generally. Settler-colonial logic, related to the economy, is what Jobin refers to as a double-edged sword. The first edge is about control–governing control. One may see this through the Indian Act, which legislates First Nations people and communities “from cradle to grave.” We may see gaining economic control as an important step towards independence in governance. What is often missed is the corresponding edge of the blade: that colonialism has also centred on disrupting and destroying Indigenous economies, and, specifically, relationships to land. The irony of this logic is that gaining more freedom from the Canadian government through the First Nations Land Management Regime or by opening up lands to the market through economic development, places Indigenous people under the governance of exploitative global capitalist markets. Boldt argues that the “reserve system was created to clear Indians out of the way of Canadian economic development”. The removal or alienation of Indigenous peoples from their full territories through the First Nations Land Management Regime or other processes that enable capitalist pursuits produces analogous results. It is clear that the First Nations Land Management Regime exists because of this logic.
The wealth disparity between First Nations people and settlers will only truly be resolved when we gain access and control over greater lands and resources.