Individual Property Rights on Canadian Indian Reserves - Essay Example

INDIVIDUAL PROPERTY RIGHTS ON CANADIAN INDIAN RESERVES BY TOM FLANAGAN AND CHRISTOPHER ALCANTARA: A CRITICAL REVIEW 2007 Individual Property Rights on Canadian Indian Reserves by Tom Flanagan and Christopher Alcantara: A Critical Review INTRODUCTION When it comes to issues such as politics and possible governmental altercations, there is much that needs to be examined and discussed. One matter in particular in regards to this subject area is that of the governance and political situation of indigenous people in Canada today, and in order to be able to understand this general issue more knowledgeably, the topic of individual property rights on the Canadian Indian reserves must be discussed. This study is going to do this by reviewing the article Individual Property Rights on Canadian Indian Reserves by Tom Flanagan and Christopher Alcantara, and by doing this not only will there be able to be a better understanding and comprehension of the article itself, but as well there will be a more informed and acknowledging viewpoint on this entire issue overall. The aim of this review is to allow for all of this by critically reviewing the article in question, including facts and arguments that are presented by the author, counter arguments from others, as well as any and all other key and related issues in this regards. This is what will be dissertated in the following. INDIVIDUAL PROPERTY RIGHTS ON CANADIAN INDIAN RESERVES BY TOM FLANAGAN AND CHRISTOPHER ALCANTARA The first thing to make note of is the actual title of this article, which is Individual Property Rights on Canadian Indian Reserves; from the title alone, we are able to get a rather detailed idea of what the article itself is going to be about. The title overtly specifies the topic as well as the main idea that is going to be represented within the article, and not only does the title itself rouse interest and create a wanting to read further on, but as well it does more than merely imply the subject, as we are told directly from the title of the article alone that we are going to be learning about the individual property rights in regards to the Canadian Indian reserves. Although the title is certainly long enough that we are able to gain a very influencing opinion on it, at the same time because it is such a general title we are not able to get a grasp on the authors' feelings towards the subject. Once we begin into the article, we can see that the main idea is basically stated within the first paragraph, as the first sentence of the entire article reads "Many Indian reserves in Canada, particularly but not only in the three prairie provinces, have no formalized individual property rights" (Alcantara & Flanagan, 2002: 5). Clearly, from this alone we can get at least a remote grasp on the matter of the article, as we can see that the authors are stating that most of the Indian reserves in Canada do not have any formalized individual property rights, and obviously this is - and in the future will be even more - incredibly problematic. The authors use various factual experiences and instances of different people in order to express the main point of their article, and the placement of their main idea creates much interest, because it compels you to wonder more about the individual property rights in regards to the Canadian Indian reserves, as well as the solutions - if any - which exist in this regards. One of the most poignant facts that the authors state within the first couple pages of the article is that of how "According to Joe v. Findlay (1981, 122 DLR 3d 377), interest in reserve land is held in common by the band as a whole and not by individual members (Nicola Band et al v Trans-Can Displays et al 2000 BCSC 1209, para 127). An individual can gain an interest in the land only under the procedures described in sections 20-29 of the Indian Act". (Alcantara & Flanagan, 2002: 5). Another one of the most major points that the authors make in this article is about how although the people living on the Canadian Indian reserves are aware of some of the problems and issues in regards to this particular matter, the majority of these communities are have little information in this regards, and this is obviously one of the most major reasons as to the problematic situation that exists here. After all, if most of the people that are actually living on the Canadian Indian reserves are not informed and aware about the individual property rights situation, then they will not know how to become involved and what they should expect to receive, for instance. This article speaks in length about the different on-reserve property rights that exist, and for instance we can see that one of these forms is "the certificate of possession (CP), known as a 'location ticket' prior to the Indian Act revisions of 1951. A certificate of possession is proof of lawful possession issued under the authority of the Indian Act by the Minister of Indian affairs after approval by the band council" (Alcantara & Flanagan, 2002: 7). There have apparently been more than 100,000 of these certificates in particular which have been handed out - issued to property owners on 288 of Canada's reserves. The CP is considered as being "a stronger form of property right than customary ownership. Land held under a CP can be subdivided, left to an heir, and sold to another person having a right to reside on that reserve" (Alcantara & Flanagan, 2002: 7). The authors use a variety of different anecdotes, quotations, actual situations and definite places, and descriptive and narrative materials, in order to prevent not only their main ideas but as well their statistical evidence to back up their main ideas, and the techniques that they used in order to contribute to their argument worked incredibly efficiently, as we are able to truly understand the problems that exist in regards to the individual property rights of the persons residing on the Canadian Indian reserves. For instance we are shown the most majorly problematic areas in regards to the limitations on the usefulness of the CPs, with one of the most primary being the fact that "they can only be transferred within the band. The inability of a CP holder to transfer possession outside of the band makes it harder for businesses and individuals to construct housing and other economic development projects on the reserve. As well, since even the largest Canadian First Nations are relatively small communities, on-reserve real-estate markets tend to suffer from lack of potential buyers" (Alcantara & Flanagan, 2006: 8). Thus we are able to see all of the different problems that the people residing on the Canadian reserves have, as they have incredibly limited individual property rights, and perhaps the worst part of all of this is that the majority of the people living there do not even realize that they do not have lawful or considerate individual property rights. More specifically in regards to the importance of the certificates of possession, they are documentary evidence of First Nation's members' lawful possession of Reserve lands pursuant to that of the Indian Act, and the particular CP holder is enabled then to be entitled to the use of the land, and then rights are transferrable by sale or bequeath. Thus, any proposed development on that CP land by any third-party requires an agreement and a contract with the CP holders. There is also the matter of the private property rights, which are still considered as being within the topic of the individual property rights, and the authors state that "private property rights do not have to be complete and absolute in order to be useful" (Alcantara & Flanagan, 2006: 8). One of the most major property-rights regimes within this is the 1999 First Nations Land Management Act (FNLMA), which is basically the Act that allows the bands to opt out of certain matters, in particular that of the land provisions of the Indian Act. There are many statements made in this part of the article which blatantly describe some of the problems that lie within the present Indian Act, such as the fact of how "it does not contain a provision dealing with the division of property after the breakdown of a marriage. Thus, since the Indian Act is silent on this issue, Indians have had to rely on the courts for redress, resulting in a body of inconsistent case law" (Alcantara & Flanagan, 2002: 9-10). There are also many restraints in regards to the FNLMA which are shown here, such as that title to reserve land remains with the Crown, and therefore what this means is that any ownership interests the band's code might create would still not amount to ownership in fee simple, and thus, the actual title-holders would even still not be allowed to sell their land to off-reserve purchasers. There are many different issues that are involved within the matter of individual property rights of the persons living on the Canadian Indian reserves, and through this article we have been able to get a much more knowledgeable and understanding grasp in regards to this. We were able to understand the main idea, and there were few generalizations made as the arguments were incredibly logical and factual based, and as well, we really got to understand the authors' views, as from the article we can see that they understand and want to push the fact that there needs to be something done about the problems with the individual property rights of those persons residing on the Indian reserves in Canada. Furthermore, this point of view that the authors took really affected the issue overall, and in a positive way, as they reinforced the fact of how many problems exist within this realm, as well as made it quite clear as to how important it is that these problems all be fixed, and sooner rather than later at that. This article was incredibly informing and delivered itself well, and the issue of individual property rights on Canadian Indian reserves is one which has been made much clearer through this work; the facts and arguments that have been described here are plenty, and truly make it easier to see just how important an issue such as this really is overall. CONCLUSION There are so many different issues that are addressed within this article within the realm of the general topic - individual property rights on the Canadian Indian reserves and the problems and hopeful solutions that are present, and we are really handed a wealth of information through the reading of this literary work. The authors have presented a structured and evidenced argument, and as well have shown the potential future solutions in the field of this subject matter. The article was incredibly easy to follow through, and we can conclude several different things in particular from this reading. For one, we have seen that there are a number of different issues that need to be addressed here, and that one of the first things that has to be done above all else is to make sure that everyone living on the Indian reserves in Canada, regardless of where specifically they live, understands their rights and acknowledges that they have really been missing out in a number of different ways. Only after this is done can the real solutions - both politically and emotionally - begin to come about, and so thus this really needs to be the beginning step. We have also been able to learn and understand more about the issue of certificates of possession, which is an extremely important topic in this discussion overall, and this review has allowed us not only to understand this issue, but as well the matter of individual property rights on Canadian Indian reserves in general. Works Cited Alcantara, Christoper & Flanagan, Tom. (2002). Individual Property Rights on Canadian Indian Reserves. 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