Long promised, now available!

Beyond the Indian Act: Restoring Aboriginal Property Rights

Tom Flanagan, Christopher Alcantara, and André LeDressay, Foreword by C.T. (Manny) Jules (McGill-Queen's University Press)

The argument convincingly shows what can be done and what is being done to alleviate poverty and the wretched housing conditions on Indian reservations.

In brief, the book makes the case for escaping the Indian Act by developing and extending the First Nations Land Title Recognition Act, a measure already in effect in some jurisdictions, which gives First Nations access to modern, effective property rights while enabling them to retain their autonomy and institutions of self-government. The authors convincingly situate this progressive innovation in the context of Aboriginal history and – to my mind, this is the book's most important feature – show that the idea for the First Nations Land Title Recognition Act originated in the political thinking and experience of First Nations' leaders, has been developed and is still being developed by them, and can be put into practice in the First Nations, by First Nations governments.

Thanks in large part to Flanagan's prior book, First Nations, Second Thoughts, Canadians are ready to conclude that the Indian Act, which on a generous interpretation was intended to protect Aboriginals and to preserve their independence, has failed dismally on both counts and far from promoting the welfare of Canada's original peoples is contributing to the distressing levels of poverty. Among the general Canadian populace it is widely believed that there is no remedy for the wretched conditions. In Disrobing the Aboriginal Industry, Frances Widdowson and Albert Howard argued that the Indian Act enriches some individuals and groups at the expense of others. But the strength of their book lies in the analysis. They do not propose a believable remedy.

The signal feature of this book is that it proposes credible means to escape the Indian Act, and credibly locates the crucial decision-making powers for making the escape – including the choice whether to make it - at the level of the First Nations governments. Beyond the Indian Act marks an important advance in Flanagan's thinking. As he notes, First Nations, Second Thoughts called for action "at the top," that is, by the Canadian governments. It thus paradoxically reinforced notions of Aboriginal dependence in the course of making the case for independence. In the scheme described in this book, the crucial decisions will come "from the bottom."

The argument develops seamlessly. There is an engaging Introduction by Chief Manny Jules (who also has the last word in the book). Each of the succeeding three Parts is introduced by a brief, helpful preface. In Part One, Flanagan sketches a history of Aboriginal perceptions of individual and collective ownership, reminding us that the intention of the First Nations Land Title Recognition Act is not to impose assimilation on Aboriginals, but to restore their property rights. In Part Two, Christopher Alcantara shows how present modes of securing title to land on the reserves (Certificates of Possession, Customary Land Rights, etc.) inhibit the individual's autonomy and way of life, and render sustained development of communities expensive and uncertain. The research is exceptional and the stories are well told. The way is thus prepared for the crucial argument of Part Three in which André Le Dressay describes the search for the measures that are taking shape as the First Nations Land Title Recognition Act.

Hernando de Soto, the President of the Institute for Liberty and Democracy, comments: "You don't have to travel to Zambia or Peru to see dead capital. All you need to do is visit a reserve in Canada. First Nation people own assets, but not with the same instruments as other Canadians. They're frozen into an Indian Act of the 1870s so they can't easily trade their valuable resources. Beyond the Indian Act provides strategies to correct this so First Nation people can generate wealth in a manner that other Canadians take for granted."

[From The Idea File]

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