The B.C. First Nation that’s experimenting with private property

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Appeared in the National Post, August 2, 2016

Citizens of the Nisga’a Nation in British Columbia have had private property rights since 2012 and clearly the sky has not fallen. If anything, anecdotal evidence finds individuals looking into using their land to build businesses and secure rental property.

In 2009 the Nisga’a was the first Indigenous community in Canada to experiment with individual “fee simple” property ownership. Fee simple estate is the highest form of property ownership where land can be bought, sold, transferred or willed to whomever the owner wishes. However, governments can still regulate land use, collect property tax, exercise police action and expropriate that land for public purposes.

The Nisga’a Landholding Transition Act only applies to Nisga’a citizens and the land in question must be zoned residential and have an area no greater than 0.2 hectares (0.49 acres). The Nisga’a government said this was done to ensure land ownership benefits go to Nisga’a families, not the land development industry. The Nisga’a government also quickly noted that the land designated residential, and hence eligible for fee simple ownership, comprised only 100 hectares (247 acres) or .05 per cent of total Nisga’a lands. This situation is quite far from some sort of mass “privatization” of lands.

Since 2012, the acquisition and development of fee simple land has been measured as well. According to Diane Cragg, registrar of land titles for the Nisga’a Lisims Government, there have been 32 parcels granted in fee simple with a further 21 offers of fee simple in process. Cragg wrote that there are eight mortgages registered against these parcels, and there have been no defaults. None. Sure, it’s a short period since the Act has been in force, but this should assuage critics who spread fear of foreclosure eroding collective title. Cragg further stated that two national banks and one credit union currently offer mortgage lending to owners of fee simple title registered in the Nisga’a Land Title Office.

Cragg stressed that the Nisga’a Land Title Office, like any provincial or territorial land title office, does not collect information on exactly why new property owners seek mortgage funds. Over time, it will be important to see how this new property ownership affects the overall Nisga’a economy. But, in the meantime, the evidence points to an orderly roll out of residential lots to Nisga’a citizens for a variety of purposes. This author travelled to the Nisga’a territory to complete a project on how their self-government agreement impacted perceptions of governance and services on the territory. At the time, I encountered excitement from Nisga’s residents who desired private ownership of their own home and backyard.

The Nisga’a made headlines when they signed one of the most comprehensive and far-reaching constitutionally protected modern treaties in Canada and now they were trailblazers again when they gave their own indigenous citizens what Canadians take for granted.

Simply put, the Nisga’a Nation wants a functioning market economy, and that includes private property as a cornerstone. The evidence linking property rights with economic prosperity is pretty conclusive, not just merely suggestive.

Jody Wilson-Raybould, current Liberal justice minister of Indigenous background, while she was B.C. regional chief for the Assembly of First Nations, said the Nisga’a experiment was “one example among a number of examples of how private interests are being created on First Nations lands” and she stressed that, “Each individual nation has to determine for itself what form of land tenure system it wants to establish moving beyond the Indian Act. This was our choice.”

The Liberal government should heed and respect the wishes of First Nations without modern treaties like the Nisga’a that want to experiment with fee simple property ownership.

At least one First Nation in B.C. has expressed interest. Why not start there?

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