Friday, January 18, 2013

Understanding Indian Reserves

The ongoing Idle no More campaign has thrust Aboriginal issues back into the spotlight in Canadian politics. Much of the public and media attention has focused on the Indian Act reserve system, and the role it is seen to play in many of the social and economic issues facing most First Nations in Canada.  Media have referred to Indian reserves as everything from "incubators of misery" to "tax-free havens"

Proposals have ranged from support for the Harper government's proposal to introduce private property rights on reserve, to abolishing the reserve system outright.  Yet much misinformation seems to surround the Indian reserve system and how it works, making it difficult to make sense of the debate. 

While it is hard to generalize, the truth is that most Indian reserves are neither third world enclaves nor a tax-exempt wonderland where people live well on the government dime.  They are communities, where people live, die, grow up and raise families.  They are often impoverished communities with grave social challenges, but for many Aboriginal Canadians, they are home.

In fact, Canada's Indian reserves are home to over 400,000 people, 98% of whom are status Indians.  The majority of status Indians reside on-reserve, although when including non-status Indians, the majority of First Nations people reside off-reserve.  Yet for many off-reserve First Nations people, the reserve is a place they often return to for events, ceremony, or to visit friends and family.  Reserve communities remain important to Aboriginal culture.  First Nations languages remain much more widely spoken on-reserve than they are off-reserve.

Collectively, Canada's 2600+ reserves make up over 26,000 square kilometres, or just over a quarter of one percent of Canada's land base, for an average size of about 10 square kilometres.  Unlike the United States, where most reserves are large, contiguous parts of land which often sustain their own internal economies, Canada's reserves tend to be small and fragmented, which creates its own economic and social challenges.

Some reserves are located on the sites of former villages or camps, or in the proximity of hunting grounds, burial grounds or sacred sites.  However, many were simply a result of programs of forced relocation or centralization: the most convenient or inexpensive piece of land the government could find to house Indians where they wouldn't interfere with non-Native settlement or resource development.  Indian reserves were meant to be a temporary expedient: it was generally felt that Indians would get an education, buy property, join the military, marry out, or pursue another path that would cause them to lose their Indian status and become fully assimilated members of Canadian society, and/or that they would simply cease to exist. 

Yet after so many generations, Indian reserves persist, and in many cases the location of these reserve communities has come to have some meaning to the people who live there.  And as time has passed, some reserves have also become economically attractive, although rarely by design.  Cities have grown and previously remote lands have become more valuable.  Resource projects have sprung up on or around reserve lands, providing opportunities for resource revenues or job creation.  Or land lost has been reclaimed through specific or comprehensive claims processes, sometimes in valuable locations.

Reserve communities face a variety of challenges.  Incomes are far lower than the Canadian average, and many reserves are plagued by social ills including alcoholism, drug use, and violence.  While the root causes of these issues are complex, some have called for the reserve system itself to be abolished, and for First Nations to be relocated to less remote locations to "start over".

This solution ignores many of the root causes of on-reserve poverty and social problems.   It also ignores the reality that while off-reserve First Nations people tend to fare somewhat better economically than on-reserve, they still generally do poorly compared to the Canadian population as a whole.  Many Natives leave the supposed poverty trap of reserve life only to find themselves in some of Canada's worst urban ghettoes.  Solving the social ills plaguing Canada's Aboriginal population is not simply a matter of relocating them to urban areas.

The Harper government's solution has been to push private property on-reserve.  Their view, which is shared by some conservative think-tanks, academics and First Nations leaders, is that creating private property rights will unlock economic potential and bring prosperity to reserve communities.

However, the fact is that that private property interests already exist, in one form or another, on many  reserves.  Bands have the ability to grant certificates of possession (CP's) which give band members the right to sole possession of a lot on reserve.  CP's can be sold, transferred or willed to other band members, and can be mortgaged.  CP holders can even lease their land to others.  The only appreciable way in which it differs from fee simple ownership is the fact that it can't be transferred to non-members.

Bands can also designate lands on-reserve for leasing to third parties, including non-Natives, usually by way of long-term lease, which can also be mortgaged.  A great deal of economic development on-reserve has been enabled by designation.  

One of the controversies with Bill C-45 is that it made the designation process easier by watering down the community approval process for designation.  In doing so, it eliminated many of the democratic safeguards that would require designation of land to have a reasonable degree of support in the community.  And while the details are still scant, the Harper government apparently plans to go further with private property rights on reserve, likely making it easier to transfer reserve lands to non-natives.

Much of the backlash of the Idle no More movement is directed at the agenda of privatization of reserve land.  The backlash is understandable.  While some First Nations have had success with designating land for leasing, this has generally been those reserves closest to urban areas.  This is not a panacea that is going to work for many remote or rural First Nations.

Further, given the existing small size of the reserve base, many First Nations struggle to find enough land to house their people.  They simply do not have available land to lease or to grant to private interests.  In addition, having endured government policy that resulted in the expropriation (often forced, often without compensation) of most of their land, First Nations are understandably reluctant to give up any remaining land.  Some First Nations have already lost control of their land base through the indiscriminate granting of CP's and leases as well, which makes them leery of creating more private property interests.  They are also familiar with the experience of the Dawes Act in the US, which broke up reserves and resulted in large transfers of land from Indian Tribes.

The privatization agenda also ignores another reality: in Canada, a significant amount of economic activity takes place on publicly-owned land.  Simply privatizing your land base does not open the road to prosperity.  In fact, those provinces with the highest percentage of private land (such as PEI, Nova Scotia and New Brunswick) tend to be the poorest, while many of those with highest amount of public land (Alberta, BC and Ontario) are generally the most prosperous.

This is not to say that private property is not important to economic development, nor is it entirely anathema to First Nations culture.  At the time of European contact, First Nations generally had sophisticated systems of land management that included a mix of rights and responsibilities vested in individuals, families and broader communities.  Like any land system, First Nations recognized a mix of community and individual rights.

The issue is more that the land base that First Nations control is already too small to allow for healthy and prosperous communities.  And further fragmentation of an already small land base is not going to address the problem, it will actually exacerbate it.  To succeed, First Nations need a larger land base, which can support an appropriate mix of private and public property.  In fact, this has already been done with some success through modern self-government agreements or land claims settlements such as those with the James Bay Cree, Nisga'a, and Tswassen First Nations.

Any solution to the problems facing the reserve system must take history into account.  Trying to create better social and economic opportunities is a vital objective.  However, the solution can't simply be another forced relocation or centralization program: any choice to relocate First Nations communities must be voluntary.  Further, any solution must take into account the cultural dimension: if there is anything that First Nations have proven after 500 years of contact, it is the resilience of their cultures.

The solution must also not result in further fragmentation and loss of the land base: if we want First Nations land to provide a base for prosperity, then they need an adequate land base, and an appropriate mix of publicly and privately owned land.  In my view, the best way to achieve these is and the related aims of improving governance and building viable communities and economies is to expedite the comprehensive and specific claims processes in order to restore more lands to First Nations control, while providing for governance mechanisms with the authority and functionality to manage the land successfully. With adequate land, revenues and governance tools, First Nations would be in a better position to build healthy prosperous communities, and can take their rightful place as full partners in Confederation.

Wednesday, January 2, 2013

Understanding Idle No More

While in Ottawa last week, I had the opportunity to visit Victoria Island, where Chief Theresa Spence is staging a hunger strike, requesting a meeting between Aboriginal leaders, Prime Minister Harper, the Governor General, and the Premier of Ontario, in order to discuss First Nations concerns regarding their treaty relationship with Canada and the Provinces.  Chief Spence is the Chief of Attawapiskat First Nation, a First Nations community in Northern Ontario that has faced more than its share of hardship, and which has become emblematic of the stark social and economic conditions facing most First Nations communities in Canada.

I did not meet Chief Spence, but I did meet some of her supporters.  I also snapped the following picture from the campsite, across the river, of the Peace Tower and the Parliament Buildings.  

Prime Minister Harper and Chief Spence could very likely see each other across the Ottawa river, yet the reality of their respective positions could not seem to be farther apart.

Chief Spence's hunger strike is just one face of the larger Idle No More movement, a campaign which has burst into the national spotlight over the past few weeks.   What started as a series of teach-ins in Saskatchewan has quickly grown into a national (and even international) protest movement, which has included marches, rallies, flash mob drum circles in shopping centres, and blockades.  Key to the campaign has been the use of social media (with the hashtag #idlenomore) to organize protest activities and to raise awareness.  The campaign has used their website to publish a manifesto and to issue calls to action.

The catalyst for the movement seems to have been the Harper government's recent omnibus budget Bill C-45.  While the bill raises democratic concerns for all Canadians (which I discussed in an earlier post), it contains some legislative changes which are of particular concern to First Nations, among others.

First, the Bill reduced the number of rivers and lakes protected under the Navigable Waters Protection Act,from 2.5 million to 159.  Coupled with changes to other environmental legislation in the previous omnibus budget Bill C-38, this threatens to seriously undermine the environmental protection of Canada's lakes and waterways.  First Nations are particularly concerned about the impact on the environment, and their treaty and Aboriginal rights to hunt and fish.

Second, C-45 makes further changes to the Fisheries Act, which was amended by Bill C-38. Of particular concern is the fact that the Act now defines "Aboriginal fisheries" as being "social and ceremonial" only.  Since Canadian courts have recognized that Aboriginal fisheries include commercial fishing rights, this is seen as a unilateral attempt to limit constitutionally protected Aboriginal fishing rights.

Third, the Act amended the Indian Act to make it easier for First Nations to designate or surrender portions of their reserve land to the Crown for leasing to outside interests.  While this was ostensibily to faciliate on-reserve economic development, it raises the risk that a poorly attended community meeting could result in a small number of band members approving a designation with potentially huge impacts.

However, First Nations are even more concerned that these changes seem to be part of a larger legislative agenda of the Harper government, one which is targeted specifically at First Nations.  The government has as many as 14 pieces of First Nations-specific legislation currently in various stages of the legislative process.  This includes legislation currently before Parliament, such as the First Nations Elections Act, the First Nations Accountability Act, a bill on Matrimonial Property Rights on reserve, and a bill proposing to amend and ultimately replace the Indian Act.  It also includes proposed legislation on private property rights on reserve and First Nations education.

The substantive concerns with this legislation vary, and will have to be addressed in future posts.  However, in each case, one overriding concern is that the government is making sweeping legislative changes affecting First Nations without proper consultation.

Canadian law requires the government to consult with First Nations when taking action which is likely to impact on the Aboriginal and Treaty rights of First Nations.   Yet most of this legislation, which does just that, has been or is being prepared with little or no consultation.  It is this larger, unilateral attempt to re-write Canada's laws on First Nations, without any meaningful discussion with First Nations people themselves, that has so angered the grassroots and inspired the Idle No More campaign.

There has been no shortage of criticism of the Idle No More movement from mainstream media, ranging from it "lacking detail" in its demands, to some media personalities essentially accusing Chief Spence of an act of terrorism for undertaking a hunger strike.Others have deflected the criticism by suggesting that First Nations leaders need to take more responsibility for the plight of their communities. 

That criticism seems reasonable on its face, but ignores a few basic facts.  First, it fails to address just how monumental the economic and social problems faced by First Nations are.  While these problems are beyond the scope of this post, they are largely a legacy of past (and even present) attempts to assimilate Aboriginal peoples, from the creation of the reserve system to residential schools and beyond.  Second, it ignores the fact that the federal government has essentially created a system in which Indian Act Chief and Council are primarily accountable to the bureaucrats at Indian Affairs, and not the communities they are supposed to represent. Further attempts at assimilation and more "accountability" to bureaucrats are not going to fix the problems they helped create in the first place.   These problems are going to require dialogue and co-operation between the treaty partners in order to solve.

More fundamentally, this criticism seems to have missed the point of the Idle No More movement.  The founders of the movement have actually taken steps to distance themselves from the Chiefs, and the movement seems to be as much a criticism of some leaders within Canada's First Nations as it is a criticism of government policy.  The sentiment seems to be that too many Aboriginal leaders have been idle in the face of government policy which erodes and undermines Aboriginal rights.

Idle No More will need to address the challenge faced by all grassroots protest movements: how to translate popular concerns and protest activity into meaningful changes and solutions which will actually improve the lives of First Nations citizens.  Idle No More will have to learn from the path of the Occupy Movement, another grassroots movement which sought to empower people, but ultimately seemed unable to translate legitimate concerns about a broken system into a meaningful programme of action, and as a result appears to have failed to achieve much in the way of lasting change.

In the meantime, regardless of the Idle no More movement's direction and demands, it is clear that one demand is not being met: the Governor General had made it clear he will not meet with the Chief, and from the Prime Minister's office, continued stony silence.