Sari Graben, “Lessons for Indigenous Property Reform: From Membership to Ownership on Nisga’a Lands”

Working Abstract

Indigenous governments in Canada are increasingly authorized to adopt laws that convert communally held lands to individual fee simple. They will convert title to fee simple in order to obtain the economic benefits commonly associated with private ownership and its securitization. However, Indigenous peoples are also likely to experience rapid social change that may necessitate the adaptation of law to local context. Governments expect to address social dislocation by exercising legislative and regulatory authority over lands, which continue irrespective of ownership. Seeking to examine the reliability of this argument, I analyze whether the legislative reforms of the Nisga’a Nation, one of the first to define its Aboriginal title as an estate in fee simple, are sufficient to address social changes likely to arise from titling.

Based on the authority obtained by the Nisga’a in the Nisga’a Final Agreement and already established in Nisga’a statutes, I argue that social impacts and laws necessarily implicated by titling reform can be addressed through the legal authority vested in the Nisga’a. However, because ownership works in collaboration with other laws to impact the social and economic environment of a community, continuing governing authority may not be sufficient to effect significant control over the use and development of the land. Drawing on the insight that titling is used as one part of a broader regime aimed at investment I argue that local reforms by Nisga’a governments that seek to ameliorate the impacts of titling are likely to be countered by investor concerns over certainty of title and security. I conclude with the observation that while privatization may be superior to communal ownership for particular Indigenous governments, law related to the social impacts of privatization should be identified as part of future land reform efforts.

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