The Royal Proclamation of 1763 established a fiduciary responsibility by declaring the Crown’s obligation to protect Indians and Indian lands from unscrupulous settlers and traders.
On the pretext of protection, the Indian Act designated reserve lands as common (as is customary to First Nations), granted title to the Crown and did not allow on-reserve property to be subject “to charge, pledge, mortgage, attachment, levy, seizure, distress or execution."
While protection is welcome, land restrictions within the Indian Act have made economic development difficult for First Nations, as they cannot use reserve lands to access capital, or attract private sector investment.
Though economic development is possible under the Indian Act, such as through land designation, government red tape makes it time consuming and costly. Obstructed from economic development, many First Nations have become dependent on government funding.
Because of Indian Act land restrictions, some critics believed that privatizing reserve lands would allow First Nations to become economically self-reliant. This included the Harper government, which proposed the First Nations Private Property Ownership Act (FNPPOA).
The act would allow reserve lands to be converted into private property. First Nations would have title and could use reserve lands as collateral to attract investment. Since FNPPOA included fee simple, individual members could use their plots of reserve land as collateral to obtain mortgages and loans for the purpose of starting small businesses.
First Nations’ opposition to the proposed privatization of reserve lands was widespread. Nearly all Assembly of First Nations Chiefs voted against privatizing reserve lands.
Speaking to the Huffington Post, Stewart Phillip of the Union of B.C. Indian Chiefs explained: “The fear is that it would completely erode the communal land base, because it would give the ability of individual property owners within a particular community the ability to sell their property.”
First Nations feared the FNPPOA would have the same effect as the US 1887 Dawes Act.
As told by Tristian Hopper in his November 2013 National Post article: “The act was premised on the so-called ‘civilizing power’ of private property, but within 30 years, all it had done was shatter traditional governance structures and help hand more than two-thirds of all American native land – an area the size of Germany – to white settlers.
"Today, the Dawes Act is seen as a social catastrophe in league with Canada’s Indian Residential Schools.”
Indigenous legal scholar, Pam Palmater, saw no difference between the Dawes Actand the FNPPOA and worried the dismantling of reserve lands would lead to “full cultural and political assimilation.”
If privatization isn’t the answer, what is?
Chief Robert Louie of the Westbank First Nation argued the purported benefits of the FNPPOA could be achieved through the First Nations Land Management Act (FNLMA) without privatizing reserve lands.
He attributed the economic success of his nation to the FNLMA and said that investors were comfortable with the leasing arrangements under this law.
As of January 2019, 153 First Nations in Canada have opted out of Indian Act land provisions and entered the FNLMA. Whatever the solution, one thing is for certain: most First Nations want to reduce their reliance on government funding, make their own money and become independent.