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From Lawyers Weekly 

Why privatization of reserve lands risks aboriginal ruin 

By John Rowinski - September 24 2010 issue

The federal government is exploring a voluntary regime of private ownership of reserve lands in Canada. This is an idea that is premature and short-sighted.

Advocates of this proposal say that the current communal stewardship of traditional lands by First Nations stifles development and stunts financial opportunities for individuals. By permitting private ownership, individuals would have the opportunity, among other things, to mortgage and sell lands.
In other words, what “they” want is for Canada’s indigenous peoples who live on reserves to be beholden to outside financial interests.

A near universal facet of indigenous cultures is a spiritual connection to land. Land is not to be bartered and sold; it is part of who we are. The inspirational tenet of this way of life is the spirit of working collaboratively for the greater good of the collective community, as opposed to the crass pursuit of individual gain at the expense of others.

Right-wing zealots call this pursuit of communal goals “socialism.” It is contrary to the ethnocentric conviction that one must be able to put a fence around one’s yard to be a “free” person. Of course for most, that fence means taking on hundreds of thousands of dollars of debt, by which multi-billion dollar banks make massive profits. The greed of lenders in turn leads to irresponsible loan commitments. This revered notion of private property very nearly put the world into financial ruin mere months ago.

Proponents of privatization exhibit a xenophobic distaste for the idea that an entire community can find a way to use land that benefits as many individuals as possible, without the need to trade this most sacred resource — so essential to the lives of everyone — like one would trade old hockey cards with schoolyard friends.

At present, governments and businesses owe billions of dollars to First Nations pursuant to treaties and for exploitation of traditional lands. Compensation is tediously slow in arriving and hard-fought by those who owe the money. Is this new proposal a distraction from the obligation to compensate aboriginal peoples for centuries of taking? It proposes the “privilege” of borrowing against the little bit of land yet to be stolen. Indigenous peoples can be debt-ridden like the rest of Canada — absolving the Crown from meeting its own financial and fiduciary obligations.

This philosophy is like saying, “We will give you all the crap you want for free, you just have to build a toilet.”

Debt without a means to escape it is merely enslavement to those holding economic power. Borrowing against the value of land may allow for improvements and access to cash. But lack of education and joblessness are endemic to the majority of reserves. With no job and little schooling, how does the borrower make payments on a traditional mortgage? The doomed answer is foreclosure, and a corresponding loss of reserve lands.

Far from a slippery slope, this is the harsh conclusion one must inevitably draw to the proposal to allow borrowing against individually-owned reserve lands.

Treaties and the constitution make it clear that the Crown owes aboriginal peoples the protection of aboriginal rights and lands. This includes the right to cultural protection, education, health care, natural resources and self-government. The Crown has failed miserably in meeting its obligations in this regard. Without first addressing these protections and correspondingly making the necessary financial commitment to establish these goals, resort to a private property regime only promises to shift aboriginal economic dependency from the Crown to lenders. This is a subtle way of completing the centuries-old goal of the colonizers — assimilation — now re-packaged as “economic opportunity.”

This is not to say that someday an on-reserve private property regime could not be a useful tool in the hands of our First Nations. Reserves near urban centres, equipped with adequate training, education and infrastructure, sufficient land to meet the needs of their members, and reasonable employment rates, may find some advantage to being able to borrow against and even market portions of their lands.

It is more difficult to foresee how privatization will assist remote communities. Lands in these territories will lack any significant market value. These are Canada’s most impoverished and troubled reserves, and aside from opportunistic resource companies, little outside interest in these lands exists.

The present-day government focus should be on ensuring the basic human rights of indigenous peoples, such as potable water, suitable housing, health, training and education, control of resources, and the honour and respect of culture and identity.

Until these foundations of self-sufficiency are solidly established, a culture of indebtedness will only serve to entrench economic and social dependence on the “rest” of Canadian society that treats the on-reserve aboriginal population as second-class citizens. Ultimately, the establishment of such a regime without first addressing other shortfalls risks the absorption and annihilation of our indigenous peoples.

John Rowinski is a sole practitioner in Brooklin, Ont. In addition to his civil litigation practice, he acts for First Nations in respect of claims, negotiations and all associated legal issues.