Troy Media – By Joseph Quesnel
A quiet revolution is taking place in British Columbia: last week, a self-governing BC First Nation made history by allowing its members to participate in the modern economy. The Nisga’a government in northwestern BC passed a law that allows individual Nisga’a residents to own and sell Nisga’a lands. As the owners of their property, they will also be able to transfer it however and to whomever they choose. Furthermore, their title to the land will be registered and protected in a Nisga’a land registry. Many hope that, over time, the land will then be registered in the B.C. land registry office, adding another level of security.
It is revolutionary because this is the first time a First Nations reserve has ceded the right of secure ownership to the individual, rather than having all property owned by the community. It is an important concession because being allowed to own your own property is the foundation of wealth creation. Now, individual Nisga’a members will be able, if they so choose, to finance their own business enterprises by obtaining loans using their home as security.
The Nisga’a government has taken the first step to reducing the poverty within its own community, poverty which plagues many First Nations in Canada.
The Nisga’a, however, was in a unique position: in 1988, it signed the first modern treaty in British Columbian history providing for an open, democratic and accountable Nisga’a government.
Among the provisions of the treaty, 2,019 square kilometres of land were transferred to the Nisga’a government, which could – unlike most First Nations under the Indian Act – then transfer it to individuals. For most First Nations title to reserve land is held by the Crown and controlled by band councils.
While band members governed by the Indian Act can receive individual allotments of land, measures, such as customary rights and band-issued certificates of possession to individuals, are insecure and weak and often cannot stand up in courts. The allotments can also be revoked by band leadership.
But now, under Nisga’a law, property ownership can be taken to the bank. Their homes can be used as security because it can be seized for non-payment. The Nisga’a decided, after three years of consultation, that this was the only way to ensure that its community members would have access to financing.
The Nisga’a people are no strangers to trailblazing. Their treaty gave them unprecedented law-making powers, still controversial in many circles. It has even generated a court challenge, with opponents arguing that it creates an unconstitutional third order of government.
But that dispute aside, the Nisga’a decision to allow for the private ownership of property is positive. Property rights which are enforceable and transferable are the backbone of our economy.
Hernando de Soto, a Peruvian economist shortlisted for the Nobel Prize, wrote in The Mystery of Capital that, unless individuals have legal title to assets like their homes and other physical objects, they cannot access the capital needed to perform meaningful economic activities. de Soto pointed out that the free market does not work well in developing countries where governments do not recognized assets owned by the poor.
If the poor want to conduct business, they have to do so illegally. De Soto calculated that in developing countries and former communist nations over $9.3 trillion existed as “dead capital.” He pointed out that this worked out to be more than those countries received in foreign aid.
While the revolutionary step taken by the Nisga’a will allow its community members to access their “dead capital,” more importantly, it marks the beginning of a conversation for all First Nations. Because the law was initiated by the First Nation itself, because it is voluntary, as members have to choose to accept land in fee simple estate, because it is limited, as the parcels can be more than 0.5 hectares (half an acre) and must be zoned as residential, and because, even if owned by outsiders, it will be subject to Nisga’a law, the fears that tracts of traditional territory could become alienated are wrong.
First Nations across Canada will be able to use the Nisga’a example and adopt it to their own systems. There is no longer any reason for Aboriginal leaders to deny native Canadians their rightful place within the economy.
Joseph Quesnel is a policy analyst with the Frontier Centre for Public Policy. He is co-author of the Third Annual Aboriginal Governance Index. www.fcpp.org
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