Lessons for indigenous property reform: from membership to ownership on Nisga'a lands.
Through its ability to deliver legal certainty, reduce transaction costs, and facilitate taxation, individuated ownership of First Nation land in Canada is expected to provide freedom of choice for individuals as well as serve as a basis for entrepreneurialism necessary for economic development. (1) Furthermore, apprehension about the impacts of property reform on communities (2) has been countered with the argument that First Nations will retain governmental authority irrespective of ownership. In contrast to the disastrous effects experienced in the United States (3) under the Dawes Act, (4) continuing authority is expected to permit context-specific reforms that reflect the social and economic goals of communities. (5) According to this argument, the power to manage land as well as regulate its transfer, development, conservation, and revenue will provide First Nations with the power to incrementally control reform after lands are titled. (6)
In this article, the author argues that empirical and theoretical discussions about property reform suggest the need for a nuanced understanding of the tensions between the use of land administration and the creation of property regimes conducive to investment. (7) Insights from scholars and practitioners engaged with law reform indicate that titling is to be used in concert with a cluster of laws and regulations that ensure certainty for investors. (8) However, because investor certainty necessitates laws that create predictable rights, the economic goals of property reform may not be compatible with local administration that shelters pre-existing norms. (9) Rather than create room for diversity, property reform in developing economies for the purposes of investment can involve the adoption of laws that can be antithetical to context-specific reforms. (10)
In order to consider how property reform might be unfavorable for context-specific reforms, this article will analyze impacts that may arise from the conversion of Nisga'a First Nation lands from communal to individual ownership and assess the potentially ameliorative effect of land administration. Legal reform undertaken by the Nisga'a First Nation, one of the first to create the possibility for individuated ownership, exemplifies both the goals of property reform, as forwarded by its advocates, as well as its suggested legal structure. Pursuant to the Nisga'a Final Agreement (NFA), it is now possible for the Nisga'a First Nation to sell, lease, mortgage, and encumber all Aboriginal title lands demarcated in the NFA. (11) Moreover, the Nisga'a has conferred the power to obtain small parcels of residential lands in fee simple on individual Nisga'a citizens. (12) However, while the Nisga'a government or an individual may lose ownership of a particular lot, the NFA ensures that the former will not lose its jurisdiction to legislate in regard to it. Based on these factors, Nisga'a governments are purportedly able to use their authority over land administration to foster context-specific land reform that controls the pace of development as well as the social and economic significance of the land for their communities.
The article begins, in Part II, by introducing the new statutory provisions that implement property reform on Nisga'a territory. This provides a sense of the legislative change undertaken by the Nisga'a and its departure from previous law. Part III identifies beneficial and detrimental impacts that may arise for communities undertaking property reform. By recognizing the rewards as well as the risks of individual ownership, this section examines the circumstances in which individual owners may lose ownership rights and the resulting demands for governmental action (especially for the government to exercise its powers over land administration) to prevent or ameliorate loss. Part IY draws on the scholarship surrounding law and development to test the assumption that legislative and executive authority is sufficient to address the types of social impacts raised here. Using divergent areas of law indirectly affected by the use of a fee simple estate, including taxation, matrimonial property, and enforcement, this Part analyzes problems that might arise for Nisga'a communities seeking to use land administration to address social impacts and prevent loss. This discussion illustrates that, if the Nisga'a must address investor concerns, titling can limit its ability to use legislative, administrative, and executive powers to control the character of land use.
Lastly, Part V of the article concludes with suggestions for future legislation needed to address the social impacts of titling. Adopting a pragmatic approach to the pressures on government to homogenize laws, it aims to identify sophisticated approaches to administration that create the certainty needed for investment but also address the needs of community owners. If local reform can often be limited, the adoption of fee simple ownership for the purposes of Indigenous development should therefore involve asking what separate but related legal concepts and legislative schemes are necessarily implicated in the securitization of title. Governments should look ahead to the broader regime that supports property rights and identify how the legal system is used to achieve development objectives. (13) For instance, what types of title registries are required to achieve certainty of title and what impacts will come from the use of provincial registries already in place? What type of enforcement mechanisms must be in place? What level of legal harmonization is needed? Lastly, and of most importance to Indigenous communities, to what degree can local or context-specific law address any adverse effects on the individual and the community? Answering these and similar questions leads to the conclusion that identifying laws that address the social impacts of titling as well as investor needs for certainty is key to successful property reform.
II. CONSTITUTIONAL AND LEGISLATIVE CHANGE
Located in the Nass River valley of northwestern British Columbia, the Nisga'a Nation has engaged in over 150 years of legal and political advocacy for governmental and proprietary control of its territories. Beginning in the 1860s, it sent the first of several delegations to Victoria and Ottawa to assert ownership and prevent the nonconsensual use of its lands. (14) By 1907, Nisga'a representatives had formed the Nisga'a Land Committee, and in 1913, the Committee famously petitioned the British Privy Council to protect their right to possess, occupy, and use all territory within the geographical limits outlined in the petition. (15) The petition asserted the right to permanently reserve portions of their lands for their own use and benefit and the right to be compensated for any lands they might agree to surrender. (16) Essentially, the Nisga'a advocated for law that identifies them as landowners who are able to both control and govern their land use. Subsequent petitions, meetings with governmental officials, and evidentiary submissions over the next 75 years demonstrated a remarkable consistency with this claim. (17)
Based on this history of advocacy, the conclusion of the NFA on 4 August 1998 was a monumental legal and political event that defined the future of the Nisga'a Nation. (18) Signed after nearly 20 years of negotiation, the NFA's most significant achievement was the constitutional protection of Nisga'a governmental authority within Nisga'a territory. (19) However, for the purposes of land rights, the NFA also delivered a full and final agreement on the property rights of the Nisga'a to nearly 2,000 square kilometers in the Nass River valley of northwestern British Columbia. Pursuant to chapter 2, paragraph 25 of the NFA, the Nisga'a Nation now owns all Nisga'a Lands under Aboriginal title, modified and continued as an estate in fee simple. (20)
The NFA further elaborates on ownership of the land and its implications for alienability where it states:
On the effective date, the Nisga'a Nation owns Nisga'a Lands in fee simple, being the largest estate known in law. This estate is not subject to any condition, proviso, restriction, exception, or reservation set out in the Land Act, or any comparable limitation under any federal or provincial law. No estate or interest in Nisga'a Lands can be expropriated except as permitted by, and in accordance with, this Agreement.
In accordance with this Agreement, the Nisga'a Constitution, and Nisga'a law, the Nisga'a Nation may:
a. dispose of the whole of its estate in fee simple in any parcel of Nisga'a Lands to any person; and
b. from the whole of its estate in fee simple, or its interest, in any parcel of Nisga'a Lands, create, or dispose of any lesser estate or interest to any person, including rights of way and covenants similar to those in sections 218 and 219 of the Land Title Act
without the consent of Canada or British Columbia. (21)
Since signing the NFA, the Nisga'a Nation has used various instruments to implement a legal regime that supports the fee simple estate. Relevant legislation includes the Nisga'a Landholding Transition Act, (22) the Nisga'a Land Act, (23) the Nisga'a Land Title Act, (24) the Nisga'a Law and Equity Act, (25) the Nisga'a Partition of Property Act, (26) the Nisga'a Property Law Act (27) the Nisga'a Nation Entitlement Act (28) and the Nisga'a Village Entitlement Act? Through these statutes, Nisga'a governments are now authorized to grant certain fee simple lands to Nisga'a citizens.
While the NFA grants title to the Nisga'a Nation, (30) it is the Nisga'a Village Governments that hold and dispose of fee simple title to individuals. Pursuant to the Nisga'a Nation Entitlement Act and the Nisga'a Village Entitlement Act, a Nisga'a Village Government may grant an entitlement within its Nisga'a Village Lands in which the Nisga'a Village owns the fee simple estate. (31) An entitlement replaces the certificate of possession or is an entirely new grant where an individual does not hold a certificate and confers upon its recipient a right to possess a particular parcel of Nisga'a Village Lands. (32) However, a grant can only be made to an eligible recipient, which includes "(a) a Nisga'a citizen, (b) the Nisga'a Nation, (c) a Nisga'a settlement trust established by the Nisga'a Nation, or (d) a Nisga'a housing service provider". (33) Moreover, the entitlement cannot already be "subject to charge, pledge, mortgage, attachment, levy, seizure, distress, or execution in favour of or at the instance of any person other than another eligible recipient or the particular Nisga'a Village." (34)
To be effective, the grant must be approved by the registrar and registered under the Nisga'a Land Title Act. (35) This requires registration in accordance with a Torrens-style land title registry, established and maintained by the Nisga'a in order to replace the Indian land registry that operates on most reserves in Canada. The benefit of the Torrens system is that it generates secure title and establishes an assurance fund. This provides a significant degree of certainty of title and a comprehensive priority scheme for interests in the land. By requiring registration in this system, anyone can, with significant certainty, track and prioritize entitlements that have been granted, transferred, and bequeathed.
What is unique to the operation of the Nisga'a entitlement, as compared to the certificate of possession on reserves, is that individuals and the Nisga'a Nation have the opportunity to convert their entitlement into individuated title in fee simple. Section 2(1) of the Nisga'a Landholding Transition Act states:
Subject to section 4, if
(a) a Nisga'a Village is registered as the owner of the estate in fee simple to a parcel of Nisga'a Lands, and
(b) a Nisga'a citizen is registered as the holder of an entitlement to the parcel,
the Nisga'a Village Government of the Nisga'a Village may, by adopting a resolution in the prescribed form, offer the estate in fee simple to the parcel to the Nisga'a citizen, without charge to the Nisga'a citizen. (36)
The provisions establish that fee simple title will be allotted in accordance with who is registered as the entitlement holder and no other resident of a home. (37) This specifies that no other type of conveyance, including traditional Nisga'a practices, will be evidence against the registration of title. Thus, the Nisga'a Land Title Act states:
Except as against the person making it, an instrument purporting to transfer, charge, deal with or affect land or an estate, interest or right in land does not operate to pass an estate, interest or right, either at law or in equity, in the land unless the instrument is registered under this Act. (38)
Those who dispute a right to ownership cannot claim any other authority as support for their claim. For further clarity, the Nisga'a Land Title Act states, "All methods of acquiring a right in or over Nisga'a Lands by prescription or adverse possession are abolished, including the common law doctrine of prescription and the doctrine of the lost modern grant." (39)
Moreover, the Act sets out the effect of indefeasible title on other claimants where it states:
An indefeasible tide, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Nisga'a Nation and all other persons, that the person named in the tide as registered owner is entitled to the estate in fee simple to the parcel of land described in the tide. (40)
This legislative scheme requires any Nisga'a citizen seeking to obtain certainty of rights as against other Nisga'a citizens to file for an entitlement to particular lots. Once an entitlement is recognized, a Nisga'a citizen can then be assured that no other person may obtain a fee simple ownership in that particular plot of land.
It is noteworthy that the Nisga'a Landholding Transition Act places conditions under which the estate can be offered to a citizen. Pursuant to the Act, the Nisga'a Village Government can offer the fee simple estate to a Nisga'a citizen only if the Nisga'a Village is registered as the owner of the estate in fee simple and if (a) the entitlement is not subject to a registered mortgage, (b) the parcel is not greater than 0.2 hectares in area, and (c) the principal use of the parcel permitted under a zoning law is residential. (41) Because of these restrictions, Nisga'a citizens are currently only permitted to obtain fee simple ownership to a limited residential lot. Moreover, future uses are likely to be limited to residential, industrial, or commercial uses, as the Nisga'a Landholding Transition Act confers no interest in mineral resources, forest resources, or roads as a product of obtaining fee simple estate in Nisga'a lands from a Nisga'a Village Government. (42) These types of conditions may preclude voracious speculation of titled land or rapid disposition by owners, as the value would be limited to those purposes consistent with residential use. Importantly, however, these conditions do not apply to a fee simple estate obtained by the Nisga'a Nation (as represented by a Nisga'a government) under the same statute. (43) The Nisga'a Landholding Transition Act does not prevent the Nisga'a Nation from obtaining a fee simple estate to any size area of Nisga'a land, nor one whose principal use is residential. Moreover, by virtue of the NFA, the Nisga'a Nation owns all mineral resources on Nisga'a lands. (44) While a Village government can still control uses through its planning powers, the legislation does not currently purport to restrict the types of land to which the Nisga'a Nation can obtain transferrable title.
III. THE REWARDS AND RISKS OF PROPERTY REFORM
A. THE REWARDS OF REFORM
The recognition of Nisga'a lands as fee simple in the NFA certainly reflects the longstanding claim of the Nisga'a to control land use in its territory. The fee simple estate is the largest interest in land recognized by the common law and includes broad rights of the owner to alienation and exploitation. (45) While governmental regulation can impose significant restrictions on the use and development of land, ownership generally prevents non-owners from directing its use and confers significant power on its owners to control and profit from the land as they see fit. As owners of their land and not mere beneficiaries, Nisga'a governments and individuals now have proprietary authority to determine land use. Adopting this position, Mitchell Stevens, President of the Nisga'a Nation, has said, "This is a significant step towards true property ownership for Nisga'a individuals. It will give freedom of choice to our people and allow them to make decisions about their property for themselves." (46) However, in addition to control over land use and development, Nisga'a land reform in the NFA and subsequent to it should also be seen to be part of a larger trend toward the promotion of law reform conducive to financial investment. (47) As President Stevens has also stated, "Having the right to use land for credit is one motivation" for the adoption of private property ownership. (48) The opportunity of Nisga'a citizens to own residential properties in fee simple is therefore to Stevens "part of our ongoing process for increasing economic prosperity for the Nisga'a". (49)
Why the Nisga'a think individuated ownership of lands that are already possessed by the same persons will generate economic certainty requires understanding the principles and policy prescriptions forwarded by economists such as Hernando de Soto (50) and those of the First Nations Tax Commission. De Soto has argued, with significant impact on World Bank policies, that poverty is largely a function of uncertain property regimes. Because the poor would benefit from obtaining property rights that provide a clear and certain system of exchange, de Soto recommends privatizing communal lands for the purposes of promoting investment. (51) Large-scale land reform around the world has sought to capitalize on this policy prescription by converting communally held lands to fees simple and implementing formal systems for recognition and exchange. (52) In Canada, the First Nations Tax Commission and its Chief Commissioner, Manny Jules, have been vocal advocates for First Nation property ownership based on de Soto's economic theory of development. Consequently, consultants hired by the Commission argue that "First Nation socio-economic disparities are a direct consequence of the failure of the market for private investment on First Nation lands" and that the absence of market investment is partly due to high transaction costs associated with legal uncertainties surrounding inalienable lands. (53)
Legal uncertainties surrounding First Nation lands are commonly sourced to sections 29 and 81(1) of the Indian Act, (54) which implemented restrictions against alienation in the Royal Proclamation of 1763. (55) The Indian Act instituted the protective measure that Indian lands could neither be bought without the approval of the federal government nor be subject to seizure for debts. (56) While protecting the integrity of community lands, these provisions of the Indian Act severely limit the ability of band governments and individual bands' members to leverage the land for the purposes of investment. Rather than use fee simple title to determine the band members' powers to use land or raise capital against it, bands use customary rights, certificates of possession, and leaseholds to determine land use on reserves. (57) However, because bands cannot tap into a well-established property rights regime, they find it difficult to convince lenders to risk their capital by investing in band initiatives. (58)
For instance, certificates of possession, which provide the holder with extensive land rights, can only be transferred between band members, and have therefore been identified as generating only conservative amounts of capital. (59) Long-term leases, which can be transferred to nonmembers, (60) have also not incentivized investment. (61) The need for a majority vote among all members of the band, an order in council, the involvement of the Department of Indian and Northern Affairs, and the questionable application of provincial regulations are seen as added complications. Consequently, financers are stated to have little familiarity with the use of long-term leases as a form of security and rarely enter into leasehold joint ventures. (62) Lastly, individual band members can also potentially raise capital against lands held through customary community recognition, including band council resolutions. A band member with a customary right can build on, improve, farm, subdivide, and sell land (to another member). However, both the band and the superintendent retain the authority to end a member s claim to the land at will. (63) The effect is to also constrain the economic value of customary tenure. (64)
Based on these types of problems with raising capital, the Tax Commission has forwarded suggestions for generating certainty. These improvements run the gamut from defining First Nations property rights as fee simple (65) to implementing land registries that lower the transaction costs associated with searching, measuring, negotiating, and executing land deals. (66) However, the Commission essentially agrees with the contention that "[p]roperty rights that are privately held, easily defined, enforceable and easily measured are the foundation upon which market forces create wealth." (67) First Nations are expected to benefit from adopting the central features of a free market system of property exchange that delivers legal certainty, reduces transaction costs, and facilitates taxation. (68) Certainty is expected to generate investment and support economic growth by (1) permitting individuals and the governments to access equity and credit by leveraging home ownership and ownership in Indigenous lands; (2) making investment in Indigenous lands more appealing to investors that want predictable property laws and regulations with which they are readily familiar; (3) diminishing the perception of risk that prevents investment in jurisdictions with regimes that do not enforce particular economic values related to property rights, ownership, estates, bankruptcy, and security; (4) generating real property tax revenues for the Indigenous governments; and (5) generating a strong economy for income tax purposes. (69)
Because of its ambitions to empower its citizens and promote economic development, it is perhaps unsurprising that Nisga'a property reforms are so consistent with the policy prescriptions forwarded by de Soto and the Tax Commission. Most importantly, Nisga'a reforms reflect de Soto's crucial recommendation to control and plan for economic and social development through certainty. (70) The adoption of the fee simple estate, the allocation of small parcels of land, and the institution of land registries mirror de Soto's policy prescriptions for obtaining clear title. (71) Detailed provisions that clarify the singular methods for establishing ownership reflect concrete attempts to remove insecurity around past claims or entitlements. (72) Similarly, provisions that clarify the rights of registered owners against all other persons attempts to eliminate ambiguity surrounding the rights of non-citizens that has allegedly limited collateralized lending to First Nations to date. (73) As Nisga'a President Mitchell Stevens has stated in regards to the law making goals of the Nisga'a: "Where there is fear, there is no investment. That is what the Nisga'a treaty is about, certainty. Not just for Aboriginal people, for the Nisga'a Nation. Certainty for all people involved." (74)
Ultimately, understanding the goals of the Nisga'a in adopting fee simple title requires recognition of the power vested in owners of private property by the law. Certainty for individual Nisga'a citizens should therefore be identified as part of a process of empowerment and control. However, by also understanding the recent changes in Nisga'a law as part of a global movement to alleviate poverty, property reform is also understood as a programmatic approach to economic development. As in other contexts, the policy prescriptions seek to reward its adoptees with healthy economies based on rights to property that attract investment and entrepreneurialism and promises to raise up the large numbers of people who hold informal and therefore discredited property rights from impoverishment. If titling prescriptions can deliver to the Nisga'a even part of what it promises, then there is little doubt that it offers an exciting option for First Nations across Canada. (75)
B. THE RISKS OF REFORM
While land reform has laudable objectives, supporters of reform have been criticized for putting the future control of community land at risk. Critics argue that a change in ownership may negatively affect individual citizens but also risk undermining the connection of First Nations to the land and the various ways that relationship has manifested in law and practice. (76) That is, while privatization can have beneficial results, such as wealth creation and social mobility, the alteration of property rights in other contexts has been shown to have unintended costs for individuals and communities. (77) The following subsections identify types of impacts that may be experienced as a result of individuated ownership and divestment.
1. PROPERTY LOSS FOR INDIVIDUALS: DIVESTMENT
One pressing and obvious concern arising from land tiding is that the conversion of lands to fee simple title will ultimately end up facilitating its divestment to non-Nisga'a. Fears that fee simple title will operate much like the Dawes Act (78) (i.e., create a patchwork of ownership and jurisdiction over US land and citizens) have prevented most First Nations from adopting its central principles. While the Nisga'a would not lose jurisdiction, (79) much like the Dawes Act, the conversion of Nisga'a lands to fee simple title makes those lands available for purchase, residency, and control by non-Nisga'a citizens. These concerns warrant further description, given some of the characteristics Canadian law reform shares with the Dawes Act and the long-term implications it has had for American Indian tribes.
An obvious way that land reform can affect the use of land is that a Nisga'a citizen can lose ownership where he or she fails to pay his or her mortgage. Pursuant to the Nisga'a Landholding Transition Act, each Nisga'a citizen will receive a plot of land free of any mortgage. (80) However, should an individual seek to build a house on the land or use the property as collateral to raise capital for another venture, it is likely he or she will obtain financing through a mortgage. The lender, often a bank, lends the capital to the borrower owner, who offers the land as security in exchange. If the borrower goes into default on the mortgage loan, the bank can begin various procedures to recover its loaned sum. It can foreclose on the property (take the property and sell it to pay the loan), force the sale, or appoint a receiver over the assets. In relation to residential properties, the most common remedy is a power of sale.
A second way that a Nisga'a citizen might potentially lose property is for nonpayment of taxes. Pursuant to the NFA, the Nisga'a may make laws in respect of the direct taxation of Nisga'a citizens on Nisga'a Lands (81) and, subject to agreement with Canada or British Columbia, (82) may make laws in respect of the direct taxation of non-Nisga'a citizens. (83) Further to these provisions, the Nisga'a Goods and Services Act now authorizes the Nisga'a government to collect taxes from any person for goods and services made on Nisga'a Lands or brought on to Nisga'a Lands. (84) Moreover, the newly-enacted Nisga'a Personal Income Tax Act authorizes the Nisga'a government to impose an income tax on every individual who is resident on Nisga'a Lands. (85) While the Nisga'a has not yet levied property taxes, it is expected to in the coming years. The Nisga'a government has reported that it has met with representatives from the province of British Columbia to discuss delegation of property tax powers and that they continue to work toward an agreement. (86) Should a landowner fail to pay taxes, the Minister of Finance is authorized under tax administration agreements to exercise its powers and register a certificate (tax lien) on real property. (87) A lien will prioritize the tax debt, ensuring that the Nisga'a government will be able to recover payment of taxes from the individuals assets when the property is sold and permitting the government to issue a writ of seizure and sale of the property.
A third way that a Nisga'a citizen can lose property is for execution of a judgment. Where a judgment has been entered against a defendant in a civil claim and that person is a Nisga'a citizen who holds title in fee simple, the plaintiff can institute proceedings to seize and liquidate the defendant's assets. (88) While loss of property generally occurs after judgment, plaintiffs can also take steps prior to litigation to ensure that the defendant's assets will be available after a judgment has been obtained to recover the amount or property that the court may grant in the future. Thus a plaintiff may seek (1) an interlocutory injunction, (2) a Mareva injunction, (3) an Anton Pillar order, (4) a certificate of pending litigation, (5) an order for the payment of a specific fund into court, or (6) other interim relief before judgment. As it relates to a Nisga'a defendant, the proceedings would be used where it is anticipated that he or she will sell property to a third party, gift the proceeds to another person, or transfer the proceeds to a location out of the country. These procedures would be used to prevent the sale of property and prevent the defendant from disposing of his or her assets prior to judgment.
Lastly, laws that can affect the ability to deal with one's property arise when the property is a family asset. Pursuant to the BC Family Law Act, each spouse is entitled to half of all family assets as a tenant in common. (89) This Act currently applies on Nisga'a Lands. (90) While spouses can agree otherwise, as a tenant in common, each is entitled to deal with his or her one-half interest in the property as he or she wishes without obtaining the other spouse's consent. Therefore, where spouses are tenants in common of Nisga'a Lands, each is now vulnerable to the other one alienating his or her interest in the property. Where the marriage has broken down and a triggering event has occurred, a court will award the entitlement to the one-half interest, thereby requiring the consent of the other party for any dealings with the property. However, these triggering events (a separation agreement, a court declaring no reasonable prospect of reconciliation, divorce, or the marriage is nullified) will usually arise late in the dissolution of the relationship and possibly too late to prevent charges against the property by one spouse. In these cases, an individual who did not alienate his or her interest in the marital property can still lose his or her future rights.
2. PROPERTY LOSS FOR COMMUNITIES: IMPOVERISHMENT
As the previous discussion indicates, the consequences for individuals who lose title are that the house and/or land is offered for sale and the owner of the property loses all subsequent rights to it. However, the consequences of property loss for communities--namely, social dislocation--are not as known, nor easily addressed by law. Concerns with social dislocation following property reform are partly grounded in fears that that individual title will break from Indigenous traditions, which tie community identity to communal ownership of the land. (91) However, concerns are also based on experience gained from historical, (92) colonial, (93) and contemporary reforms. (94)
For instance, efforts to convert communal ownership to individual ownership in developing economies have taught that property relations are fundamental in determining the beneficiaries and losers of land tenure reform. Ownership of land, like that of other property, generates a subset of social relations that is determined by a bundle of institutionalized rights and obligations sanctioned by law that regulate the access to land and its products among governments, corporations, individuals, families, social groups, and communities. (95) Rather than treat land strictly as a commodity, concerns with redistribution identify that differing conceptions of property in communities continue long after land reform has been formalized and that the difficulty of adapting to rapid legal change can impede the realization of titling's socioeconomic benefits. (96)
In regards to the Nisga'a, the simplest and most acute example of this change is the real possibility that individual ownership may undermine the current right of Nisga'a citizens to occupy lands by virtue of their membership in the community. (97) While previously regulated by the Indian Act (98) and band regulations, the right of an individual to occupy reserve land has been grounded in group membership. However, once a membership right is converted into a property right, a member can potentially lose the right to occupy the property. In this case, the member's ability to live in the community comes into question and must be redressed through new legal and policy solutions of the Nisga'a government.
The possibility that non-community members can acquire indefeasible title in Nisga'a lands is often articulated as having a cultural impact for communities. (99) The phenomenon is expressed as a concern that a significant influx of non-Nisga'a residents onto Nisga'a lands will alter the community that currently exists. While a massive influx of non-Nisga'a citizens as residents could impact identification with the land as Nisga'a, it does not seem likely in the near future, as the remote location of Nisga'a lands militates against widespread residential ownership by non-Nisga'a persons. Rather than an influx of non-Nisga'a residents, a greater cultural impact may result from the proliferation of ownership by absentee landlords. (100) An absentee landlord is one who is the ultimate owner of the land but uses it to extract rental payment for its use by another. Generally referencing property owners that reside far from the leased property, the term characterizes those whose only interest is to extract economic value from the land. These owners have almost no social, economic, or political relationship with the tenant, nor social or physical attachment to the land or the community in which that land is located.
A bank that subjects a mortgaged property to sale may attract those seeking to invest in property ownership on Nisga'a lands but who live elsewhere. Where the landlord resides elsewhere, the money generated by the property is spent in another jurisdiction. Communities will often fail to see the beneficial impact of increased rents as local reinvestment. There are also linkages between absentee ownership and the economic and physical devaluation of property. This linkage arises where the owner observes only the legislative minimum standard of repair and is not readily available to address any problems with the property. In this scenario, properties fall into greater disrepair over a series of years and warrant lower rents relative to the market. A lower rent attracts lower income tenants for which the owner is unwilling to invest further in the property. Eventually, this cycle perpetuates lower property values. It can also be difficult to contact the owner of the property in the event of housing or zoning code violations. Similarly, enforcing landlord-tenant rights, remedying large-scale damage, and ensuring the property meets public requirements are difficult to enforce against absentee landlords. It thus becomes the de facto responsibility of the government to track down the owner and ensure that the problems are remedied. This can be costly and ineffective for a small community.
In addition to absenteeism, fee simple ownership may also concentrate ownership in the hands of a few Nisga'a citizens and thereby undermine the goals of developing capital wealth for numerous Nisga'a citizens. (101) Land titling to promote economic development is expected to result in an increased supply in the land market, thereby leading to economic development through regularized transfers. (102) However, this might not be the consequence of land titling where sub-groups within communities are the only purchasers and governance frameworks cannot counteract it. This could be a concern in the Nisga'a context. Where individual owners default on mortgages and the mortgagee seeks to sell the property to recoup its losses, the most likely purchasers, at least for the immediate future, will be other Nisga'a citizens. As in all communities, there are Nisga'a citizens who are better placed to own multiple properties because they have the capital or are capable of raising the capital to invest in rental properties. However, studies have shown that where there is a selective concentration of land in the hands of a limited few elites, markets do not necessarily operate as expected. (103) Rather than generate market investment that delivers economic development for a range of economic actors, land titling can result in the monopolization of land access. (104) This can further instantiate elites and marginalize certain sub-groups within communities. (105)
Impacts of land titling on Nisga'a women are also still emerging at this time. (106) While each Nisga'a citizen is now eligible to receive an individual land entitlement, which plot he or she will receive is a matter that must be determined by the Nisga'a Village Government. Failure to receive allotments without structures forces an individual to carry a greater social burden of obtaining the capital needed to build. Based on the preponderance of historical allocations to men under the Indian Act, it seems likely that Nisga'a men will more often receive entitlements for land where houses have already been built. (107) Moreover, women who reside in homes allotted to men remain vulnerable to loss of rights in the home resulting from divorce, separation, and default discussed above. For example, the BC Family Law Act now governs the division of assets between married spouses on Nisga'a lands. (108) As tenants in common, each owner's interest in a property is separate and distinct. A tenant in common can sell his or her share in the asset, mortgage the property, use it as collateral, or give it to someone else as a gift. Also, should one owner die, his or her interest in the house can be distributed according to his or her will. All of these factors will impacts the ability to rely on the property as a secure residence.
Ultimately, even a quick consideration of Nisga'a land use illustrates that land titling will work in concert with a host of supportive laws to ensure legal certainty for investors. Enforcement mechanisms related to mortgaging, taxation, and rent assume that land rights will be transferred as easily and clearly in the case of defaults as they would be in other jurisdictions. However, the loss of property rights is likely to have a hugely disruptive impact for communities. Individual Nisga'a have occupied their homes by virtue of their rights as community members for generations. While the ability of a Nisga'a person to obtain a house has always been tied to the financial ability of Nisga'a and federal governments to provide, its possession was largely secure once one was obtained. Once Nisga'a citizens convert their ownership to fee simple, that assurance is largely lost.
What then can be expected from Nisga'a citizens who lose their rights to lands? It seems certain that once facing material dispossession that affects community stature, Nisga'a citizens are likely to call for laws and policies that ameliorate the effects of divestment. Rather than leave the market to redistribute assets in the absence of state intervention, as land reform assumes, Nisga'a citizens are likely to advocate for understanding the impacts of property on community relations and residency. Moreover, they are likely to advocate for laws that recognize cultural practices related to the distribution of property particular to the Nisga'a. Claims of this type may arise as cultural claims, meaning that they are rooted in the early traditions of the Nisga'a. However, they may also arise simply as claims for procedural safeguards against the unjust distribution of socioeconomic resources. Either way, they will call upon all three levels of government to take a more active role in economic development. Most tellingly, claimants are unlikely to focus on the efficiency of property law reform that leaves distribution to the market. Instead, they would seek to use the power of the Nisga'a government to disrupt the use of land solely as a tool for economic development.
IV. IT'S SO SIMPLE: USE NISGA'A LAW
A. NECESSARY REFORMS
Because current land reform efforts may have consequences that can be addressed through law, it is important to recognize that the Nisga'a possess continuing legislative jurisdiction to regulate the use of the land in a way that is consistent with community values. Contrary to the Dawes Act, which resulted in the loss of both ownership and governance over title lands in the United States between 1887 and 1934, the NFA distinguishes between power affected through private property rights and power effected through governance. The effect of fee simple ownership under the NFA is that it presumes retention of governmental authority over the land by the Nisga'a Nation following its alienation, including sale to third parties, whether Native or non-Native. (109)
The effect of the NFA provisions is that the Nisga'a Nation never has to surrender its governing authority over land to the Crown, even if the land is fully and finally sold to a third party. This is because it retains legislative and executive powers over the land in perpetuity. Private ownership of Nisga'a Lands by non-Nisga'a individuals and non-Nisga'a corporations will not therefore impact the governmental jurisdiction that the Nisga'a exercises under the treaty. Hence, it is argued that the unity of Nisga'a Lands remains intact. (110) For instance, pursuant to the NFA, the Nisga'a Nation has retained a reversionary right to the land through escheatment. (111) While the Crown retains its underlying title to the land, it is required to transfer lands that would normally revert to the Nisga'a Nation instead. Pursuant to the NFA, the Nisga'a Nation also retains the power to expropriate and makes laws for the expropriation of land. (112) Lastly, and importantly, the Nisga'a Lisims Government can subject persons to taxation, irrespective of who owns the lands. For example, it can subject Nisga'a citizens on Nisga'a lands to direct taxation (113) and is exercising its authority to levy goods and services taxes for items brought onto and supplied on Nisga'a lands. (114) Taken together, these powers evidence the continuing rights of the Nisga'a Nation over the lands, irrespective of who is the registered owner.
The retention of authority over Nisga'a Lands has a positive psychological value for the Nisga'a that is likely unquantifiable. The Nisga'a Nation has long celebrated the Nass Valley as an essential part of its culture and identity. Its perpetual authority over the region should therefore be understood as part of Nisga'a autonomy. Nonetheless, the degree to which the social character of land use will remain within government control following divestment, should be subject to further analysis. More specifically, assumptions that legislative and executive authority over lands will substantiate a significant connection with the land can obfuscate how ownership may preclude ameliorative lawmaking following titling.
Rather than identify titling as a panacea for economic development, the scholarship on property reform instructs that to be effective, land titling must be operationalized through a cluster of laws related to secured lending and land use. (115) This work identifies that after land has been mapped, assigned, and registered, it is matters such as banking, (116) Contracting, (117) and enforcement, (118) which play the crucial role in determining the social and economic effect of titling. (119) For example, scholars have identified that ownership of newly titled lands in several developing economies has led to greater property improvement but few titleholders have put formalized titles to use as collateral for commercial loans. (120) The failure to translate what de Soto calls dead capital into investment capital is largely ascribed to other weaknesses in the law. (121) For instance, high default rates, difficulties with repossession, and poor employment records, have made commercial banks hesitant to loan to titleholders in South Africa. (122) Similarly, several studies in Latin America have shown that owners remain rationed out of the formal credit markets where the cost of registering and foreclosing on mortgages remain high. (123) Rather than promote lending by the private sector, poor liquidity and difficulties with foreclosure have precluded expected access to private credit. (124)
In addition to the need for supportive legal reforms, public governance frameworks play an essential role in ensuring the efficacy of titling. (125) Consistent with the broad trend in new institutional economics, studies on public governance indicate that the effectiveness of property rights is also dependent upon a consistent legal and institutional framework, broad access to information, as well as a competent and impartial judiciary and bureaucracy capable of enforcing rights. (126) From the perspective of its advocates, (127) legal reforms aimed at attracting investment should focus on well-defined and alienable private property rights. However, investment also requires contract law that facilitates impersonal contracting; corporate law that facilitates capital investment through incorporation, the limitation of liability, and shareholder protections; secured lending that makes it easy for creditors to take a broad range of assets as collateral, identify competing claims to those assets, and seize and sell the assets in the event of default; a bankruptcy regime that induces the exit of inefficient firms and redeployment of their assets to higher valued uses; and a non-punitive, non-distortionary tax regime. (128) In sum, economic development may be spurred by land titling but it also requires widespread legal change that supports securitized lending.
Where there are inadequate legal regimes for achieving efficient securitized lending, governments engage in institutional borrowing needed for private investment. (129) Legal rules or systems are either voluntarily borrowed by those engaged in law reform or may be required as a result of integrated financial arrangements. (130) The difficulty with the use of borrowed law is that it creates new categories of losses and gains that were not previously experienced by individuals and communities when operating under earlier schemes. For example, Trebilcock and Veel note that the operation of a property rights regime depends on its interactions with a number of related legal and social institutions necessary for the maintenance of the rule of law, such as registration systems, judiciary, and police services for enforcement. (131) However, these institutions implement new rules that diverge sharply from prior practice, leading to increased social conflict. (132) Thus, governments can be faced with divergent legislative agendas: one that seeks to implement property reform and its attendant institutions and one that seeks to maintain social relations established under prior regimes. (133)
In Canada, these types of conflicts may arise in regards to the enforcement of rent amounts on Nisga'a lands. Prior unwillingness of certain community members to pay rental amounts owed to community owners might have gone without penalty in the past because traditional practices generate expectations that the community will provide housing. (134) However, unpaid debts under the new regime may be more likely to result in eviction. A failure by the Nisga'a government to ensure eviction can put governmental goals for economic development at risk as investors will be unlikely to invest where their chances of repossessing collateral is low. Those losses may create a new class of disgruntled citizens who are likely to generate a need for responsive government action that mitigates or avoids the efficiencies of new legal reforms.
Rather than advocate against land titling, scholarship on reform alert those who seek to use law for development that property rights do not exist in a vacuum. (135) More importantly, the critical scholarship cautions against a use of titling and land registration to address the problem of legal uncertainty without considering internal conditions (136) and the diverse social contexts in which they operate. (137) Rather than merely introduce legal certainty for investment, critics identify that the introduction of land titling will create both winners and losers, which governments must then support or accommodate through laws that can be complementary for economic development but can also be antagonistic to social practices to which communities remain committed.
B. THE REALITIES OF LAND ADMINISTRATION
If the existence of continuing legislative authority purports to answer the central critique of property reform in Canada, then the insight that land reform will necessitate the implementation of laws supportive of certainty, demands the identification of its limits. Identifying various circumstances in which opportunities for land administration might arise, the following discussion demonstrates how titling necessarily imports defined concepts related to the mortgaging, taxation, sharing, rental, and enforcement of rights. In doing so, it illustrates that the Nisga'a are likely to adopt and enforce a host of laws that are supportive of investment but that can be antithetical to local or context-specific reform.
For instance, should absenteeism become a problem, property tax agreements could permit the government to tax non-resident owners differently. (138) Differential taxation is a legislative resolution that has been suggested for other jurisdictions with high rates of absenteeism. (139) However, taxing property not owned by a resident is controversial and might also capture those rental properties owned by Nisga'a citizen elites but rented to others. Both types of owners would be unlikely to support such an initiative and may prove difficult to pass. Problems with absenteeism may also be dealt with through zoning laws and enforcement. The Nisga'a Lisims Government and Nisga'a Village Governments have jurisdiction over zoning and building administration. For example, pursuant to the NFA these governments may "make laws in respect of the design, construction, maintenance, repair, and demolition of buildings, structures, and public works on Nisga'a Lands" (140) and may make laws in respect of
a. the use, management, planning, zoning, and development of Nisga'a Lands;
b. regulation, licensing, and prohibition of the operation on Nisga'a Lands of businesses, professions, and trades, including the imposition of licence fees or other fees, other than laws in respect of the accreditation, certification, or professional conduct of professions and trades; and
c. other similar matters related to the regulation and administration of Nisga'a Lands. (141)
Based on these provisions, the Nisga'a Governments could use its jurisdiction over zoning, licensing, buildings, structures, and public works to limit how residences are built, maintained, or used in order to address derelict housing.
However, the regulation of lands to meet particular social needs raises questions about whether investors would be interested in securing or purchasing rental properties with different or more onerous conditions. These questions may arise prior to building, when Nisga'a governments or entrepreneurs seek investment and investors seek assurances that the Nisga'a government will not undertake regulatory reform. Investors familiar with the changeable character of band councils and the local politics of small communities may desire measures that prevent future changes under fee simple regimes. (142) Alternatively, disputes may arise as a result of attempts to institute changes following approval that investors see as adverse to financial returns. In these circumstances, new legislation will potentially be challenged as incompatible with particular expectations of companies operating on Nisga'a lands. For example, companies that undergo an environmental assessment for erecting a residential building may have to return for further assessment when the building is to be demolished. Should the terms for decommissioning, such as the holdback amount that is to be deposited with the government, change in that time or vary from provincial requirements, investors may seek redress.
In addition to using its legislative and regulatory authority in regards to taxation and zoning, it is arguable that the Nisga'a government is authorized to make laws that impact what is meant by fee simple title on Nisga'a lands. Interestingly, now that the lands are held in fee simple, disputes will likely be determined by and in accordance with the provincial legal system. (143) In the past, disputes over use of Nisga'a land would have been determined by the Indian Act or sui generis rules, which were distinguished from fee simple tide. Internal disputes between community members could also have been settled in accordance with Nisga'a legal traditions or local politics. Community members would have gone to the band council or chief and had the dispute decided. Now, community members have recourse to their own administrative bodies, a Nisga'a court when it is established, as well as superior courts in the province.
For disputes between Nisga'a and non-Nisga'a persons, courts will be faced with deciding upon the powers and scope of Nisga'a entities, such as its legislative, executive, and administrative bodies. What legal interpretation of provincial and Nisga'a law these bodies undertake will be relevant to the types of powers used to control land use. Can the traditional laws of the Nisga'a be used to interpret the statutory text? The Nisga'a have stated that their system of land ownership "sets the economic rules and is the social foundation" for their society as it "laid out the rules of access to the rich economic resources of the Nisga'a lands" and would therefore be relevant to disputes over land use. (144) However, there is not much in the public record regarding Nisga'a traditions on property nor is it clear how they would relate to its statutory laws. (145)
One broad question may be whether the NFA imports a different meaning of fee simple title than previously held in law. The NFA most certainly imports a different meaning for Aboriginal title. Aboriginal title is a proprietary interest in land resulting from its prior occupation by Aboriginal peoples. (146) However, it has largely been characterized by the distinction the courts have drawn between it and fee simple. Namely, that it is communal, that its use must be reconcilable with the nature of the group's original attachment to the land, and that it is inalienable, except to the Crown. (147) These restrictions on title are premised on conceiving Aboriginal title as a sui generis type of ownership and has resulted in two permutations on the ownership of the land: irreconcilable use and inalienability. (148)
Should a First Nation wish to use the land in a manner that is irreconcilable with its original use or alienates it, the First Nation is not, as defined in current case law, exercising its rights to Aboriginal title. (149) The Court has stated that any irreconcilable use requires that the land be surrendered to the Crown and converted into nontide lands in order to so. (150) While the Court has not explained what is precisely meant by the term "nontitle", it seems the group would be exercising rights ascribed to fee simple title and may receive fee simple title in exchange for the surrender. (151) In Guerin v The Queen, Wilson J characterized the effect of surrender as merging the band's interest in the fee and vesting the land free of the Indian title in the Crown. (152) Incongruous use has the effect of replacing Aboriginal title, as conceived by the Court, with another form of right to the land. Moreover, the Court has postulated that political and legal authority of the nation holding Aboriginal tide to the lands no longer attaches to the land following surrender and sale. (153)
Despite this strict delineation between Aboriginal and fee simple title in the case law, the Nisga'a Nation has obtained Aboriginal title that has no inherent limits on use and can be alienated. Furthermore, the sale of its title lands does not require it to surrender its governing authority. (154) If the distinction between the Aboriginal and fee simple estate to date has rested on these defining characteristics, their melding in the NFA indicate that traditional notions of Aboriginal title will not be very relevant to its interpretation in the future. However, it would also be inaccurate to define Aboriginal title in the NFA merely as fee simple, as there are enhanced authorities that distinguish it as something greater. For example, the NFA seems to vest Crown-like entitlements in the Nisga'a regarding the ultimate ownership of land. The NFA declares that "[i]f, at any time, any parcel of Nisga'a Lands, or any estate or interest in a parcel of Nisga'a Lands, finally escheats to the Crown, the Crown will transfer ... that parcel, estate or interest to the Nisga'a Nation." (155) While the formal rights of the Crown to escheated property remain constant, the perpetual right of the Nisga'a Nation to repossession may reflect the creation of a new type of interest in law. (156) Much as the Crown holds a radical or allodial title to all lands, making it the ultimate "owner" of the land, so now do the Nisga'a. Whether this interest can be characterized as a perpetual, reversionary interest or whether it recognizes the right of the Nisga'a to some form of allodial-like tile under the Crown remains a matter for future determination. However, with no precedent in law for this arrangement, it might mean that the NFA has created a new type of property right. (157)
If one is skeptical that Nisga'a interpretations of the fee simple estate could be used to address impacts from alienation, then consider its regulatory powers. The Nisga'a are free to regulate a number of matters that impact how land is handled and how disputes are resolved. Can Nisga'a traditions that do not seek to alter the fundamental principles of fee simple title but effectively regulate its use be used to address community impacts? The straightforward answer is "yes". The legislative, administrative, and executive jurisdiction of the Nisga'a over a wide range of issues can impact the way land disputes are managed. For instance, for those who take property in Nisga'a lands, there are questions about whether they will be able to enforce their rights and who will do the enforcement. (158) Property rights include two fundamental components: the right to exclude others by granting or withholding permission, and the enforcement of this right by the state. (159) In short, if one has a right to ownership, one also obtains the right to call upon state powers to ensure that such rights will be realized. In practice, however, this right contains an assumption that an agent of the state will have the corresponding authority to enter onto the land and enforce those rights. (160)
In practice, enforcement may involve the eviction of the previous owners and entry onto Nisga'a lands in order to list and show the house for sale. The degree to which agents will be able to enforce property rights and the degree to which Nisga'a governments will allow these provisions to be used to evict Nisga'a citizens who are no longer owners is not clear. What is clear is that it is unlikely to be a popular decision for Nisga'a leaders, especially should it become routine. Thus, the potential of the Nisga'a to institute its own legal procedures for the taking of property and eviction of tenants is something that may be explored. Section 59 of the NFA grants the Nisga'a Lisims Government and the Nisga'a Village Government the authority to make laws
in respect of the regulation, control, or prohibition of any actions, activities, or undertakings on Nisga'a Lands, or on submerged lands within Nisga'a Lands, other than actions, activities, or undertakings on submerged lands that are authorized by the Crown, that constitute, or may constitute, a nuisance, a trespass, a danger to public health, or a threat to public order, peace, or safety. (161)
Procedural requirements instituted pursuant to this provision could reflect traditional Nisga'a processes and be highly administrative. (162) However, both the content and the jurisdiction to implement these processes and its administration are likely to be controversial and contested in both Nisga'a and non-Nisga'a courts. Moreover, because provincial law applies on Nisga'a lands and the Nisga'a government has referentially incorporated a number of provincial statutes related to property, it is likely that many disputes will be adjudicated by non-Nisga'a courts in accordance with these regimes, as understood in the common law to date.
It is, however, also possible that a Nisga'a court will consider matters in dispute and may apply Nisga'a law. The NFA grants authority to a Nisga'a court to consider certain issues that arise. Chapter 12 states as follows:
The Nisga'a Court may exercise the powers and perform all the duties conferred or imposed on it by or under Nisga'a laws, in respect of:
a. the review of administrative decisions of Nisga'a Public Institutions;
b. the adjudication of prosecutions under Nisga'a laws; and
c. the adjudication of disputes arising under Nisga'a laws between Nisga'a citizens on Nisga'a Lands that would be within the jurisdiction of the Provincial Court of British Columbia if the disputes arose under provincial law. (163)
A Nisga'a court would arguably have a better understanding of Nisga'a legislative intentions and goals as well as the Nisga'a legal regime that supports the action. Consequently, Nisga'a perspectives on land and Nisga'a laws may be used to interpret any Canadian laws (including Nisga'a laws) applicable in the instance. However, even the choice of venue and law will be matters for future contestation. Whether a Nisga'a court is the proper venue for a proceeding, what law it will consider, and whether an appellate court will uphold the basis of Nisga'a jurisprudence are sure to be factors that will impact the degree to which the Nisga'a Nation can use its jurisdiction to address the future impacts of fee simple title.
Taken as a whole, the quick survey presented here of impacts from land titling and some of the legal tools available indicate that the Nisga'a could find innovative ways to address the impacts of property law reform. By using its legislative and executive powers, the Nisga'a are legally empowered to address the negative impacts of divestment and could implement the type of contextual or place-specific practices needed to offset large-scale social change. (164) Yet questions about whether Nisga'a governments will exercise those powers in the face of contrary pressures undermine any quick conclusions about the effect of continuing governmental authority. Much of land titling operates on the premise that the source of economic growth is private investment and that private investors want legal certainty first and foremost. Pressures against the institution of legislation that diverges from those of the province indicate that an inquiry into the legal tools that can be used by the Nisga'a is only one part of the analysis. The other part is whether the Nisga'a has the political will to use these tools in the face of contrary pressure. Thus, while fee simple title is important for raising capital, raising investment is dependent upon a more fundamental buy-in from business interests who feel confident in the applicable legal and regulatory schemes.
V. CONCLUSION: NO SIMPLE SOLUTIONS
In order to realize the claims that continuing governmental authority will control the character and use of the land, this article has raised some suggestions for how legislative and regulatory authority can be used to address issues that may arise in the future. Suggestions for changes in zoning, terms of ownership, and procedures for the taking of property and eviction of tenants could be useful to affect place-based reforms. Nonetheless, given the desire to attract investment in newly titled lands, it is more likely to be investor familiarity with regimes surrounding environmental assessment, heritage resource protection, land use, taxation, and commercial codes that will determine whether a government will implement place-based reform. As advocates for Indigenous reform have argued, "the barrier to prosperity on First Nation land is an inability to provide the institutional legal framework to support investment." (165) Yet rather than support differential local reforms that reflects the authority of Indigenous governments, investors are likely to call for the widespread adoption of laws with which they are familiar. (166)
To be sure, the social impacts of titling raised in this article assume that legal change will continue to reflect the certainty needed for investment. It is possible that the impacts identified here will not arise or that any impacts will be spread out over long periods of time. However, if that is not the case, then this article has explored what those impacts could be and has explained why ameliorative legislation may not be well received. If, however, the exercise of Nisga'a jurisdiction over land use is practically limited, a different legislative agenda for law reform will be needed.
Legislative reform focused on certainty allows investors to identify the risks of lending as well as the costs of recovering loss. Nisga'a reforms should consider whether all legal differentiation dissuades investment or whether it is only differentiation that increases governmental discretion. Reforms that attempt to achieve certain discretionary controls should be drafted to have uniform application and overseen by bodies that are arm's length from elected officials. Alternatively, decision making could incorporate procedural requirements that are tailored to the use or distribution of particular types of resources but which are detailed in advance.
Global experience with decentralization indicates that while it transfers discretion to local government to represent the preferences of citizens in decision making, it also requires the implementation of mechanisms that hold local government accountable. (167) This can prevent decisions that garner widespread criticism and ultimately fail. Administrative tribunals with local expertise can be used to address procedural conflicts arising from governmental decision making and to ensure accountability. The NFA establishes such authority in the Nisga'a Administrative Decisions Review Board, which operates pursuant to the Nisga'a Administrative Decisions Review Act. (168) The Act sets out the authority and process for the Board to review executive decision making of the Nisga'a government where it is reached unfairly, based on an incorrect finding in law or beyond its jurisdiction. However, not only can the Board ensure compliance with national laws, regulations and standards, it can also ensure compliance with local standards and principles, including norms that have dictated community processes in the past. For example, if the Nisga'a included in eviction processes a procedural requirement that the government identify residential placement for the divested owner in the community prior to eviction, the Board could assess whether evictions were sanctioned in compliance with the rule.
The use of responsive legislative reform to address citizen concern also raises a series of broader questions about the influence that business actors exercise through Indigenous decision makers. Do investors indirectly influence government actors either through disincentives, such as failure to invest, or are there more direct attempts? Are Indigenous governments more or less vulnerable to the lobbying efforts of certain industry actors than are other levels of government? Alternatively, investors may attempt to incentivize government actors against regulation through strategies, such as graft, compensation agreements, support for community infrastructure, and other fringe benefits. If so, laws could be drafted to anticipate and address these methods of persuasion. Citizen oversight bodies might address the need for accountability. If the administration of public resources is the issue, then citizen development councils might be vested with the authority to set the direction for economic and social development with which external investors must evidence compliance. Independent bodies can also be struck to conduct administrative audits on local governments and scrutinize public spending. Alternatively, ombudsmen could hear complaints about regulatory decisions and actions, thereby making public complaints more accessible.
Privatization of land and the decoupling of federal responsibilities under the Indian Act also increase the likelihood that the Nisga'a government will assume the increased social costs resulting from titling as well as its benefits. As it is faced with paying for these social responsibilities, it will inevitably look to capitalize on contractual arrangements. Legislative measures could ensure that tradeoffs and concessions, a necessary part of governmental decision making, are transparent and accountable to individual citizens. Alternatively, citizens may also be involved in overseeing the analysis of bidding offers as well as ensuring that the winning contractors fulfill agreed terms.
It is arguable that investor demands for legal certainty in regards to Indigenous lands falsely assume the constancy of provincial and federal law, which changes regularly to meet the needs of citizens impacted by the market. It may therefore be easier for Nisga'a governments to implement reforms previously developed in other jurisdictions that accord with internally determined priorities. For example, the Nisga'a may introduce protective measures related to foreign ownership that have been tested in other jurisdictions to address market failures. Alberta's Foreign Ownership of Land Regulations prevent foreign citizens and foreign controlled corporations from owning more than 2 parcels or 20 acres of controlled land. (169) Should the Nisga'a wish to control what type of investors may ultimately own certain Nisga'a land, this legislative structure may offer a helpful precedent. In this sense, the Nisga'a would not only borrow the hardware of the fee simple estate and rely on its reputation to promote investment. It would also borrow the legal innovations developed by other governments to address market failures associated with free market exchange.
Ultimately, this article has made it apparent that by adopting certain elements of a particular property regime, the Nisga'a may be restricted in its ability to implement distinct local laws. This preclusion arises from the recognition that laws do not operate in isolation. On the contrary, laws operate as part of a system, each part relying on and made consistent with the other. By showing how deeply implicated both title and laws related to land administration are in defining relationships to land, this article has made it apparent that the adoption of the fee simple estate is not simply a change in ownership that begets capital. Rather, it involves a change in the laws and principles that govern the ability to use the land. As such, land reform is best understood as part of a series of legislative choices that governments must make for wealth promotion. The changes expected to result from land reform are not particular to the Nisga'a or those governments in possession of newly titled land. However, they will be especially cogent for Indigenous governments expecting to reap its economic rewards. With the protection of the Indian Act and inalienability gone, Indigenous governments will be forced to find legislative innovations that help to promote economic development while protecting the social relations of its citizens. That there is a need to identify and plan for the social challenges that lie ahead is therefore the most important lesson for Indigenous governments that have already undertaken land reform and those that will do so in the future.
(1) See Tom Flanagan, Christopher Alcantara & Andre Le Dressay, Beyond the Indian Act: Restoring Aboriginal Property Rights (Montreal: McGill-Queen's University Press, 2010); First Nations Property Ownership Initiative, online: <http://www.fnpo.ca /proposal.aspx> [FNPO Initiative]; Fiscal Realities Economists, "Making Markets Work on First Nations Land: The Role of the Land Title System in Reducing Transaction Costs" (Paper prepared for the First Nations Tax Commission, April 2009), online: First Nations Property Ownership Initiative <http://www.fnpo.ca> [Fiscal Realities Economists, "Making Markets Work"].
(2) See e.g. Jamie Baxter & Michael Trebilcock, "'Formalizing' Land Tenure in First Nations: Evaluating the Case for Reserve Tenure Reform" (2009) 7:2 Indigenous LJ 45; Mary Eberts, "Still Colonizing After All These Years" (2013) 64 UNBLJ 123; Marena Brinkhurst & Anke S Kessler, "Land Management on First Nations Reserves: Lawful Possession and Its Determinants" (2013) 8:2 Journal of Aboriginal Economic Development 78; Shiri Pasternak, "Private Property and the Conservative Agenda: Manny Jules, Hernando de Soto, and the First Nations Property Ownership Initiative" (2010) 8:9-10 First Nations Strategic Bulletin 1, online: Library and Archives Canada <www.collectionscanada.gc.ca>; Susan Campbell, "On 'Modest Proposals' to Further Reduce the Aboriginal Land Base by Privatizing Reserve Land" (2007) 27:2 Canadian Journal of Native Studies 219; Brian Egan & Jessica Place, "Minding the Gaps: Property, Geography, and Indigenous Peoples in Canada" (2013) 44 Geoforum 129 (exploring debates); Pamela D Palmater, "Opportunity or Temptation? Plans for Private Property on Reserves Could Cost First Nations Their Independence", Book Review of Beyond the Indian Act: Restoring Aboriginal Property Rights by Tom Flanagan, Chris Alcatara & Andre Le Dressay, Literary Review of Canada 18:3 (April 2010) 6, online: <http://reviewcanada.ca>; Richard Wright, "The Nisga'a experiment", UC Observer (April 2013), online: UC Observer <http://www.ucobserver.org>. For discussion of conflicting Nisga'a viewpoints on its benefits, see CBC Radio, "Nisga'a First Nation: This Land Is My Land", The Current (4 November 2013), online: <http://www.cbc.ca>; Andrew Findlay, "The Nisga'a's Private Struggle", BC Business 38:3 (3 March 2010), online: <http://www.bcbusinessonline.ca>.
(3) Flanagan, Alcantara & Le Dressay, supra note 1 at 42-54.
(4) An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations, c 119,24 Stat 388 (1887) [Dawes Act],
(5) See e.g. Flanagan, Alcantara & Le Dressay, supra note 1; FNPO Initiative, supra note 1.
(6) Christopher Alcantara, "'Privatize Reserve Lands? No. Improve Economic Development Conditions on Canadian Indian Reserves? Yes'", Discussion and Debate, (2008) 28:2 Canadian Journal of Native Studies 421 at 425; Flanagan, Alcantara & Le Dressay, supra note 1 at 54; Fiscal Realities Economists, "The Role of Land Title in Developing First Nation Economies and Government" (Paper presented to the Indian Taxation and Advisory Board and the Department of Indian and Northern Affairs, British Columbia, March 2007) at 20, online: First Nations Property Ownership Initiative <http://www.fnpo.ca> [Fiscal Realities Economists, "Role of Land Title"].
(7) For this perspective in comparative contexts, see Lee Godden & Maureen Tehan, eds, Comparative Perspectives on Communal Lands and Individual Ownership: Sustainable Futures (New York: Routledge, 2011).
(8) Kevin Davis & Michael Trebilcock, "The Relationship between Law and Development: Optimists versus Skeptics" (2008) 56:4 Am J Comp L 895 at 903. See generally Omotunde EG Johnson, "Economic Analysis, the Legal Framework and Land Tenure Systems" (1972) 15 JL & Econ 259. For meta-analysis of implications of land tenure reform in developing economies, see Solon L Barraclough, "Land Reform in Developing Countries: The Role of the State and Other Actors", Discussion Paper No 101 (United Nations Research Institute for Social Development, June 1999), online: United Nations Research Institute for Social Development <http://www.unrisd.org>.
(9) Katharina Pistor, "The Standardization of Law and its Effect on Developing Economies" (2002) 50:1 Am J Comp Law 97 at 99: Klaus Deininger Sc Gershon Feder, "Land Registration, Governance, and Development: Evidence and Implications for Policy" (2009) 24:2 World Bank Research Observer 233 at 240. For case studies, see Ting Xu, "Global Legal Transplants through the Lens of Community: Lessons for and from Chinese Property Law" in Amanda Perry-Kessaris, ed, Socio-Legal Approaches to International Economic Law: Text, Context, Subtext (Abingdon, UK: Routledge, 2013) 167 at 177-78: TW Bennett, "Re-introducing African Customary Law to the South African Legal System" (2009) 57 Am J Comp L 1.
(10) See e.g. Michael Trebilcock & Paul-Erik Veel, "Property Rights and Development: The Contingent Case for Formalization" (2008) 30:2 U Pa J Int'l L 397; David M Trubek, "The Rule of Law in Development Assistance: Past, Present, and Future" in David M Trubek & Alvaro Santos, eds, The New Law and Economic Development: A Critical Appraisal (New York: Cambridge University Press, 2006) 74 at 87-93; Mariana Prado Sc Michael Trebilcock, "Path Dependence, Development, and the Dynamics of Institutional Reform" (2009) 59:3 UTLJ 341 (on the role of path dependence in entrenching particular legal regimes).
(11) Nisga'a Final Agreement, Canada, British Columbia & Nisga'a Nation, 27 April 1999, c 2, para 25 [NFA], The Nisga'a Nation ratified the NFA on 9 November 1998. The British Columbia government ratified the NFA on 22 April 1999: Nisga'a Final Agreement Act, SBC 1999, c 2. The federal government ratified by Royal Assent on 13 April 2000: Nisga'a Final Agreement Act, SC 2000, c 7.
(12) See Nisga'a Landholding Transition Act, NLGSR 2009/02. Provisions in several contemporary land claim agreements already provide other Aboriginal governments with the authority to implement real property systems. However, the Nisga'a First Nation is one of the first to convert the communal ownership of its lands to individuated fee simple. Debate about property reform has also been sparked by proposals to introduce the First Nations Property Ownership Act, which would grant fee simple ownership to individuals. For discussion of the proposal, see FNPO Initiative, supra note 1.
(13) For a similar approach to understanding the underlying rationales for enacting tenure reforms and assessing their capacity to meet the development objectives of the community, see Baxter & Trebilcock, supra, note 2 at 57.
(14) See Mary C Hurley, Parliamentary Information and Library Services, "The Nisga'a Final Agreement", Background paper PRB 99-2E (9 February 1999, revised 24 September 2001).
(15) "Petition to His Majesty's Privy Council in the Matter of the Territory of the Nishga Nation or Tribe of Indians" (21 May 1913), online: Nisga'a Lisims Government <http://www.nisgaanation.ca/1913-petition>.
(16) See the summary of Nisga'a advocacy on the website of the Nisga'a Nation, ibid.
(17) In 1915, a Nisga'a delegation met with the Minister responsible for Indian Affairs and Duncan Campbell Scott to defend the petition. Nisga'a chiefs also asserted and explained their claim to title before the McKenna-McBride Commission, and lobbied in Ottawa over a six-week period in 1916. That year, the Nisga'a and 15 other tribal groups formed the Allied Indian Tribes of British Columbia, a province-wide organization for the pursuit of land claims. See Hurley, supra note 14.
(18) NFA, supra note 11.
(19) See Sari Graben, "The Nisga'a Final Agreement: Negotiating Federalism" (2007) 6:2 Indigenous LJ 63.
(20) NFA, supra note 11, c 2, para 25.
(21) NFA, supra note 11, c 3, paras 3-4.
(22) Supra note 12.
(23) NLGSR 2000/09.
(24) NLGSR 2010/06.
(25) NLGSR 2010/07.
(26) NLGSR 2010/08.
(27) NLGSR 2010/09.
(28) NLGSR 2000/12, as amended by the Nisga'a Nation Entitlement Amendment Act, 2010, NLGSR 2010/02. See also Nisga'a Nation Entitlement Regulation, NLGSR 2001/04, as amended by Nisga'a Nation Entitlement Regulation Amendment, NLGSR 2005/06.
(29) NLGSR 2000/13. See also Nisga'a Village Entitlement Regulation, NLGSR 2001/03, as amended by Nisga'a Village Entitlement Regulation Amendment Regulation, NLGSR 2005/01 and Nisga'a Village Entitlement Regulation Amendment Regulation, NLGSR 2005/05.
(30) NFA, supra note 11, c 3, paras 3-4. The Nisga'a Nation is defined in the NFA as "the collectivity of those aboriginal people who share the language, culture, and laws of the Nisga'a Indians of the Nass Area, and their descendants" (ibid, c 1).
(31) Nisga'a Nation Entitlement Act, supra note 28, s 2(1); Nisga'a Village Entitlement Act, supra note 29, s 2(1).
(32) See Nisga'a Nation Entitlement Act, supra note 28, s 1.
(33) Ibid, s 1.
(34) Ibid, s 1 ("eligible recipient").
(35) See Nisga'a Village Entitlement Act, supra note 29, s 2(3).
(36) Nisga'a Landholding Transition Act, supra note 12, s 2(1).
(37) Nisga'a Land Title Act, supra note 24, s 18.
(38) Ibid, s 14(1).
(39) Ibid, s 18.
(40) Ibid, s 17(1).
(41) See Nisga'a Landholding Transition Act, supra note 12, s 4(1).
(42) Ibid, s 5(2)(b).
(43) Ibid, s 4(2).
(44) NFA, supra note 11, c 3, para 19.
(45) See B Ziff, Principles of Property Law, 2d ed (Scarborough, Ont: Carswell, 1996) at 147-52.
(46) Mitchell Stevens, quoted in Wright, supra note 2. See also Mitchell Stevens, quoted in Nisga'a Lisims Government, Press Release, "Nisga'a Individual Property Ownership" (28 October 2010), online: <http://www.nisgaanation.ca> ["Nisga'a Individual Property Ownership"].
(47) On motivations of the Nisga'a, see Joseph Quesnel, "Creating Indigenous Property Rights: The Nisga'a Landholding Transition Act" in International Property Rights Index 2011 Report, online: Property Rights Alliance <http://propertyrightsalliance.org>.
(48) Mitchell Stevens, quoted in Wright, supra note 2.
(49) Mitchell Stevens, quoted in "Nisga'a Individual Property Ownership" supra note 46.
(50) Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000) [De Soto, The Mystery of Capital]. For de Soto's application to First Nation lands in Canada, see Hernando de Soto, "Indigenous Property Rights", (Paper delivered at the Conference on First Nations Property Ownership, Vancouver, 20 October 2010) [unpublished]. For others' application, see Flanagan, Alcantara & Le Dressay, supra note 1. See also the FNPO Initiative, supra note 1.
(51) De Soto, The Mystery of Capital, supra note 50.
(52) See e.g. World Bank, Land Law, online: World Bank <http://go.worldbank.org /GTX8ZDU320>; John W Bruce et al, Land Law Reform: Achieving Development Policy Objectives (Washington, DC: World Bank, 2006); Klaus Deininger, Land Policies for Growth and Poverty Reduction: A World Bank Policy Research Report (Oxford, Washington, DC: Oxford University Press, World Bank, 2003). On de Soto's impact, see D Benjamin Barros, ed, Hernando de Soto and Property in a Market Economy (Farnham, UK: Ashgate Publishing, 2010).
(53) Fiscal Realities Economists, "Making Markets Work", supra note 1 at 2.
(54) RSC 1985, c 1-5, ss 29,81(1).
(55) George R, Proclamation, 7 October 1763 (3 Geo III), reprinted in RSC 1985, App II, No 1 at 5 [Royal Proclamation}.
(56) Indian Act, supra note 54, ss 24,29, 89(1).
(57) For discussion, see Flanagan, Alcantara & Le Dressay, supra note 1.
(58) See Clarence T (Manny) Jules, "First Nations Property Ownership Initiatives: A First Nations-Led Legislative Proposal" (Paper delivered at the First Nations Property Ownership Initiative Conference, Kamloops, March 2010), [unpublished]; Fiscal Realities Economists, "The Role of Land Title in Developing First Nation Economies and Government" (Paper presented to the Indian Taxation and Advisory Board and the Department of Indian and Northern Affairs, British Columbia, March 2007), online: First Nations Property Ownership Initiative <http://www.fnpo.ca> [Fiscal Realities Economists, "Role of Land Title"]; Fiscal Realities Economists, "The Economic and Fiscal Impacts of Market Reforms and Land Titling for First Nations" (Paper presented to the Indian Taxation and Advisory Board and the Department of Indian and Northern Affairs, British Columbia, March 2007), online: First Nations Property Ownership Initiative <http://www.fnpo.ca> [Fiscal Realities Economists, "Economic and Fiscal Impacts"].
(59) Tom Flanagan & Christopher Alcantara, "Individual Property Rights on Canadian Indian Reserves" (2004) 29:2 Queens LJ 489 at 508. For general discussion, see Christopher Alcantara, "Individual Property Rights on Canadian Indian Reserves: The Emergence and Jurisprudence of Certificates of Possession" (2003) 23 Canadian Journal of Native Studies 391; Marena Brinkhurst & Anke Kessler, "Land Management on First Nations Reserves: Lawful Possession and its Determinants" (2013) 8 Journal of Aboriginal Economic Development 78 (on extent of use).
(60) Indian Act, supra note 54, s 38(2).
(61) Fiscal Realities Economists, "Making Markets Work", supra note 1 at 3.
(63) Customary rights do not create a legal interest in the land that would conflict with the provisions of the Indian Act. See Nicola Band et al v Trans-Can Displays et al, 2000 BCSC 1209,  4 CNLR 185.
(64) Flanagan & Alcantara, supra note 59 at 501-04.
(65) FNPO Initiative, supra note 1, proposal 4. For the Commission's related research, see Fiscal Realities Economists, "Role of Land Title", supra note 6.
(66) FNPO Initiative, supra note 1, proposal 8. For the Commissions related research, see Fiscal Realities Economists, "Making Markets Work", supra note 1 at 1.
(67) Fiscal Realities Economists, "Role of Land Title", supra note 6 at 1.
(68) FNPO Initiative, supra note 1. This approach is grounded in predictions that the adoption of title and a Torrens-style registry, which accompanies titling initiatives, will improve the execution of ownership transfer between 6 and 20 times, as well as reduce the search, measurement, and negotiation costs for the land purchase, its financing, and ultimate sale. See Fiscal Realities Economists, "Making Markets Work", supra note 1 at 2.
(69) See Flanagan, Alcantara & Le Dressay, supra note 1 at 160-82.
(70) Ibid at 160.
(71) Diane Cragg, "Best Practices in First Nations Land Title Systems: Considerations for Improving Land Title Certainty on First Nations Lands" (Paper delivered to the First Nations Property Ownership Initiative, British Columbia, 15 March 2007) [unpublished].
(72) Nisga'a Landholding Transition Act, supra note 12.
(73) Nisga'a Land Title Act, supra note 24, s 17(1).
(74) Mitchell Stevens, quoted in Centre for First Nations Governance, "Nisga'a First Nation Circle of Governance" (2 March 2012), online: YouTube <http://youtu.be /VmBtq9YIXEA>.
(75) On the shared modernization agenda, see Shiri Pasternak, "How Capitalism will Save Colonialism: The Privatization of Reserve Lands in Canada" (2 April 2014) Antipode (online version published before inclusion in an issue), online: <http://onlinelibrary.wiley.com>.
(76) Eberts, supra note 2 at 151-52; Campbell, supra note 2.
(77) See Trebilcock & Veel, supra note 10 at 444-53. For an overview of costs in Canada, see Brian Egan & Jessica Place, "Minding the Gaps: Property, Geography, and Indigenous Peoples in Canada" (2013) 44 Geoforum 129.
(78) Supra note 4.
(79) NFA, supra note 11 ("[a] parcel of Nisga'a Lands does not cease to be Nisga'a Lands as a result of any change in ownership of an estate or interest in that parcel" at c 3, para 5). In contrast, the provisions of the Yukon Umbrella Final Agreement stipulate that upon registration in the Land Titles Office, the Yukon First Nation will cede release, and surrender all Aboriginal claims, rights, titles, and interests. Umbrella Final Agreement, Canada, Council for Yukon Indians & Yukon, 29 May 1993, online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca>.
(80) Nisga'a Landholding Transition Act, supra note 12, s 4(a).
(81) NFA, supra note 11, c 16, para 1.
(82) See e.g. Nisga'a Nation Taxation Agreement, Canada, British Columbia & Nisga'a Nation, 11 May 2000.
(83) NFA, supra note 11, c 16, paras 3-4.
(84) Nisga'a Goods and Service Tax Act, NLGSR 2008/06.
(85) Nisga'a Personal Income Tax Act, NLGSR, 2013/02.
(86) Nisga'a Lisims Government, Taxation, online: <http://www.nisgaanation.ca>.
(87) Income Tax Act, RSC 1985,c 1 (5th Supp), s 223. Tax administration agreements between Canada and Aboriginal governments include a standard clause that the Minister of National Revenue shall be the administrative authority in respect of the tax, including all interpretations, assessments, determinations, decisions, and any other matter related to administration, collection, or enforcement. For example in relation to the Nisga'a, see Nisga'a Nation Goods and Service Tax Administration Agreement, Between the Government of Canada (Minister of Finance) and the Nisga'a Nation (July 30, 2008), s 33.
(88) Court Order Enforcement Act, RSB C 1996, c 78, s 96.
(89) Family Law Act, SBC 2011, c 25, s 85.
(90) In the absence of a Nisga'a law on the subject of matrimonial real property respecting Nisga'a lands, provincial laws of general application would apply. See NFA, supra note 11, c 2, para 13.
(91) See generally Antonia Mill, Eagle Down is Our Law: Witsuwit'en Law, Feasts, and Land Claims (Vancouver: UBC Press, 1994).
(92) See e.g. Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas (London, UK: J Murray, 1861); Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1957).
(93) See e.g. Sally Engle Merry, Colonizing Hawaii: The Cultural Power of Law (Princeton: Princeton University Press, 2000). For examples of this approach and the continuity of colonialist heritage of law reform, see Upendra Baxi, "The Colonialist Heritage" in Pierre Legrand & Roderick Munday, eds, Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, 2003) 46 at 53 (arguing that it is impossible to disengage the colonial from the post-colonial and neo-colonial).
(94) See generally Brian Tamanaha, "The Primacy of Society and the Failure of Law and Development" (2011) 44 Cornell Int'l LJ 209: Michael Trebilcock, "Communal Property Rights: The Papua New Guinean Experience" (1984) 34 UTLJ 377; Sally Engle Merry, "From Law and Colonialism to Law and Globalization, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia" (2003) 28:2 Law & Soc Inquiry 569.
(95) Barraclough, supra note 8.
(96) See e.g. World Bank, Land Law, online: World Bank <http://go.worldbank.org /GTX8ZDU320>; Trebilcock, supra note 94 at 378.
(97) On the changing nature of collection ownership, see Pam Palmater, quoted in Wright, supra note 2:
Collective ownership of land, even the diluted kind of "ownership" proffered by the Indian Act, is preferable to private ownership, she says, and the two are mutually exclusive. "Either the community is going to protect its collective land holding as a collective, or it will break everything up. There's not a lot of in-between. Once you start parceling out First Nations land, people will sell it for as much as they can, and everyone will go their own way. Then there goes the reserve: there goes the territory."
(98) Indian Act, supra note 54.
(99) For examples of this argument in regards to the United States, see Wilcomb E Washburn, The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887 (Malabar, Fla: Kreiger, 1986).
(100) For further discussion in regards to Indigenous lands, see Baxter & Trebilcock, supra note 2 at 98.
(101) Ibid at 112.
(102) Deininger & Feder, supra note 9 at 238.
(104) Ibid. See also Antara Haidar & Joseph E Stiglitz, "Analyzing Legal Formality and Informality: Lessons from Land Titling and Microfinance Programs" in David Kennedy & Joseph E Stiglitz, eds, Law and Economics with Chinese Characteristics: Institutions for Promoting Development in the Twenty-First Century (Oxford: Oxford University Press, 2013) 112 at 123.
(105) Haidar & Stiglitz, ibid.
(106) For a survey of issues related to matrimonial property on reserves and suggested application of provincial law, see Wendy Cornet & Allison Lendor, Discussion Paper: Matrimonial Real Property on Reserve (Ottawa: Indian and Northern Affairs Canada, 2002); Canada, Parliamentary Information and Research Service, Bill S-4: Family Homes on Reserves and Matrimonial Interests or Rights Act (Legislative summary) by Anna Gay & Marlisa Tiedemann (Ottawa: Library of Parliament, 2010).
(107) This would reflect the underrepresentation of women in regards to division of property under the Indian Act. See Christopher Alcantara, "Indian Women and the Division of Matrimonial Real Property on Canadian Indian Reserves" (2006) 18:2 CJWL 513.
(108) Family Law Act, SBC 2011, c 25.
(109) The NFA achieves this purpose with the following: "A parcel of Nisga'a Lands does not cease to be Nisga'a Lands as a result of any change in ownership of an estate or interest in that parcel": NFA, supra note 11, c 3, para 5.
(110) See Jules, supra note 58 at 7.
(111) NFA, supra note 11 ("[i]f, at any time, any parcel of Nisga'a Lands, or any estate or interest in a parcel of Nisga'a Lands, finally escheats to the Crown, the Crown will transfer, at no charge, that parcel, estate or interest to the Nisga'a Nation" at c 3, para 7).
(112) Ibid, c 11, para 50.
(113) Ibid, c 16, paras 1-2.
(114) See Nisga'a Goods and Services Tax Act, NLGSR 2008/06.
(115) For further discussion on the use of harmonization in contemporary treaties, see Sari M Graben, "Living in Perfect Harmony: Harmonizing Sub-Arctic Co-Management through Judicial Review" (2011) 49:2 Osgoode Hall LJ 199.
(116) Christopher Woodruff, Book Review of The Mystery of Capital by Hernando de Soto (2001) 39:4 Journal of Economic Literature 1215 at 1220.
(117) Gary D Libecap, "Contracting for Property Rights" in Fred S McChesney & Terry L Anderson, eds, Property Rights: Cooperation, Conflict and Law (Princeton: Princeton University Press, 2003).
(118) SF Joireman, "The Mystery of Capital Formation in Sub-Saharan Africa: Women, Property Rights and Customary Law" (2008) 36:7 World Development 1233; Sandra F Joireman, Where There is No Government: Enforcing Property Rights in Common Law Africa (Oxford: Oxford University Press, 2011) [Joireman, Where There is No Government].
(119) Johnson, supra note 8.
(120) Deininger & Feder, supra note 9 at 251-56; Karol C Boudreaux, "The Legal Empowerment of the Poor: Titling and Poverty Alleviation in Post-Apartheid South Africa" (2008) 5:2 Hastings Race & Poverty LJ 309.
(122) Ibid at 337.
(123) Erica Field & Maximo Torero, "Do Property Titles Increase Credit Access among the Urban Poor? Evidence from a Nationwide Titling Program" (2006) [unpublished, archived online: Scholars at Harvard <http://scholar.harvard.edu>]; Michael R Carter & Pedro Olinto, "Getting Institutions 'Right' for Whom? Credit Constraints and the Impact of Property Rights on the Quantity and Composition of Investment" (2003) 85:1 American Journal of Agricultural Economics 173; Ricardo Fort, Property Rights after Market Liberalization Reforms: Land Titlingand Investments in Rural Peru (Wageningen, Netherlands: Wageningen Academic Publishers, 2007).
(124) Deininger & Feder, supra note 9 at 255.
(125) Joireman, Where There is No Government, supra note 118.
(126) Ibid at 238-43.
(127) See Julio Faundez, "Rule of Law or Washington Consensus: The Evolution of the World Bank's Approach to Legal and Judicial Reform" in Amanda Perry-Kessaris, ed, Law in the Pursuit of Development: Principles into Practice? (London, UK: Routledge, 2010) 180; Tor Krever, "The Legal Turn in Late Development Theory: The Rule of Law and the World Banks Development Model" (2011) 52:1 Harv Int'l LJ 287.
(128) Davis & Trebilcock, supra note 8 at 903. See also Kenneth W Dam, The Law-Growth Nexus: The Rule of Law and Economic Development (Washington, DC: Brookings Institution, 2006).
(129) This type of institutional borrowing results in what is referred to as a "legal transplant": a rule or system of law that has moved from one country to another or from one legal culture to another. See Alan Watson, Legal Transplants: An Approach to Comparative Law, 2d ed (Athens, Ga: University of Georgia Press, 1993). For a discussion of the terms used to describe the process, see Esin Orucu, "Law as Transposition" (2002) 51:2 ICLQ 205. See also Esin Orucu, "Developing Comparative Law" in Esin Orucu & David Nelken, eds, Comparative Law: A Handbook (Oxford: Hart Publishing, 2007) 43 at 58. This process can be contrasted with the "Grands Systemes" approach at the macro level and the "Country and Western" tradition at the micro level of private law. For discussion, see William Twinning, Globalisation and Legal Theory (Cambridge: Cambridge University Press, 2000) at 178-89.
(130) For the evolution of the practice, see Trubek, supra note 10. The use of transplanted packages of law has generally been associated with the universal prescriptions of the Washington Consensus to privatize, deregulate, and trade without state intervention and with prescriptions to impose reforms that promote rule of law, especially related to property. In this formulation, the private sector and public sector institutions are expected to adopt groups of laws that are complementary to each other and the purpose of investment. The arrangement is typical of International Monetary Fund requirements that states adopt legal systems that support a free market economy. However, the term is also associated with voluntary reforms. For example, countries, such as China and Russia, have borrowed law from the United States or European countries when implementing new and complex legal regimes needed to regulate matters related to securities or competition. See Chen Lei, "Contextualizing Legal Transplant: China and Hong Kong" in Pier Giuseppe Monateri, ed, Methods of Comparative Law (Cheltenham, UK: Edward Elgar, 2012) 192.
(131) Trebilcock & Veel, supra note 10 at 456.
(132) See ibid. See also Pistor, supra note 9. For a cautionary note about the neo-cultural turn in law and development, see Amy J Cohen, "Thinking with Culture in Law and Development" (2009) 57 Buff L Rev 5IT, Richard Howitt et al "Capacity Deficits at Cultural Interfaces of Land and Sea Governance" in Ryan Walker, Ted Jojola & David Natcher, eds, Reclaiming Indigenous Planning (Montreal & Kingston: McGill-Queen's University Press, 2013) 313 at 314.
(133) Ruth Meinzen-Dick & Esther Mwangi, "Cutting the Web of Interests: Pitfalls of Formalizing Property Rights" (2009) 26:1 Land Use Policy 36.
(134) See Christopher Alcantara, "Certificates of Possession and First Nations Housing: A Case Study of the Six Nations Housing Program" (2005) 20 CJLS 183 at 201.
(135) See Amartya Sen, "How Does Culture Matter?" in Vijayendra Rao & Michael Walton, eds, Culture and Public Action (Stanford: Stanford University Press, 2004) 37.
(136) See Trebilcock & Veel, supra note 10 at 401; Daniel Berkowitz, Katharina Pistor & Jean-Francois Richard, "The Transplant Effect" (2003) 51 Am J Comp L 163 (the method of transplantation determines effectiveness); David Kennedy, "Some Caution about Property Rights as a Recipe for Economic Development" (2011) 1:3 Accounting, Economics and Law 1 (on the mistaken idea that the West has certain property rights).
(137) See Roger Cotterrell, "Comparatists and Sociology" in Pierre Legrand & Roderick Munday, eds, Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, 2003) 131. A few seminal articles articulated the crisis experienced in the first law and development movement: see e.g. David Trubek & Marc Galanter, "Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States" (1974) 4 Wis L Rev 1062; John Henry Merryman, "Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement" (1997) 25:3 Am J Comp L457.
(138) See NFA, supra note 11, c 16.
(139) See e.g. Real Property Tax Surcharge on Absentee Landlords, NY ADC [section] 11-238 (West, 2013); Richard Murphy, "An Empty Property Tax: My 2009 Proposal for the TUC needs to be Revisited" (3 February 2014), Tax Research UK (blog), online: <http://www.taxresearch.org.uk/Blog>.
(140) NFA, supra note 11, c 11, para 69.
(141) Ibid, c 11, para 47.
(142) A contractual tool that is possibly unenforceable in Canada would be the adoption of stabilization clauses, a risk management device used to prevent the application of future social and environmental regulations to investment activities. See generally John Ruggie, Stabilization Clauses and Human Rights: A Research Project Conducted for IFC and the United Nations Special Representative of the Secretary General on Business and Human Rights (27 May 2009), online: International Finance Corporation <http://www.ifc.org>.
(143) See Paul Rynard, "Welcome In, but Check Your Rights at the Door: The James Bay and Nisga'a Agreements in Canada" (2000) 33:2 CJPS 211 at 223.
(144) Nisga'a Lisims Government, Importance of Land, online: <http://nisgaanation.ca>. For statements of the Nisga'a on this, Nisga'a Lisims Government, Adaawak (Stones), online: <http://www.nisgaanation.ca>. In Nisga'a traditions, the adaawak of a wilp's (house's) traditions regarding its territory and its geography is the private property of the chief. It is taught to other people in line for the sim'oogit (chief's) name and related publically at feasts by a rightful teller as a means of legitimizing the transfer of the sim'oogit name and the ango'oskw attached to it.
(145) For discussion on tribal boundary disputes between the Nisga'a and the Gitxsan and Gitanyow and references to relevant legal traditions, see Neil J Sterritt et al, Tribal Boundaries in the Nass Watershed (Vancouver: UBC Press, 1998). For related band traditions, see Wilson Duff, Histories, Territories and Laws of the Kitwancool (Victoria: Royal British Columbia Museum, 1989).
(146) See Delgamuukw v British Columbia,  3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw].
(147) Ibid at 1089.
(149) See ibid it 1089.
(150) Ibid it 1091.
(151) This is not specified in Delgamuukw.
(152) Guerin v The Queen,  2 SCR 335 at 376, 13 DLR (4th) 321 at 354 [Guerin]. While Guerin dealt with the surrender of reserve land under the Indian Act, Justice Dickson noted that the Indians'interest in the land in question arose from its pre-existing legal right and that it did not matter "that the present case is concerned with the interest of an Indian Band in a reserve rather than with unrecognized aboriginal title in traditional tribal lands. The Indian interest in the land is the same in both cases" (ibid at 379).
(153) Delgamuukw, supra note 146 ("[a]lienation would bring to an end the entitlement of Aboriginal people to occupy the land and would terminate their relationship with it" at 1090).
(154) See NFA, supra note 11, c 3, para 5. The retention of authority by Aboriginal governments has not been implemented uniformly in contemporary land claims. For instance, the Yukon Umbrella Final Agreement provides that where Aboriginal title that is equivalent to fee simple title is registered in the Yukon land registry, the registering First Nation cedes, releases, and surrenders all Aboriginal title to the land in question. See Umbrella Final Agreement, supra note 79.
(155) NFA, supra note 11, c 3, para 7.
(156) Local governments generally do not receive escheated land from the Crown. Depending on why it escheats, land typically vests in the Provincial or Federal Crown, which will hold the land for a given period in case the dissolved corporation revives and/or heirs are found. In the event they are not found, the Crown will then take ownership. See e.g. Escheat Act, RSBC 1996, c 120, s 3-4.
(157) Other differences in ownership rights in the NFA include: the special treatment of Crown expropriation of Nisga'a Lands (NFA, supra note 11, c 3, paras 55-86) and limitations on the right of the provincial Crown to grant rights to submerged lands (NFA, supra note 11, c 3, para 24).
(158) Regarding enforcement with respect to reserves, see Anita G Wandzura, "The Enforcement of Security Interests Against the Personal Property of First Nations on a Reserve" (2008) 39:1 Ottawa L Rev 1.
(159) See Felix Cohen, "Dialogue on Private Property" (1954) 9:2 Rutgers L Rev 357 at 373.
(160) Ibid at 372-73.
(161) NFA, supra, note 11, c 11, para 59.
(162) For a discussion of the impact of contemporary treaties on administrative law, see Lorne Sossin, "Indigenous Self- Government and the Future of Administrative Law" (2012) 45:2 UBC LRev 595.
(163) NFA, supra, note 11, c 12, para 38.
(164) For discussion of a contingency model for reforming tenure on reserves in Canada, see Baxter & Trebilcock, supra note 2.
(165) Fiscal Realities Economists, "Economic and Fiscal Impacts", supra, note 58 at 14.
(166) For the argument against uncertainty in property rights regimes on Indigenous lands, see Thomas Isaac, "First Nations Land Management Act and Third Party Interests" (2005) 42:4 Alta L Rev 1047.
(167) See Serdar Ylmaz, Yakup Beris & Rodrigo Serrano-Berthet, "Local Government Discretion and Accountability: A Diagnostic Framework for Local Governance" (Washington, DC: World Bank, 2008), Social Development Working Papers, Local Governance and Accountability Series Paper No 113, online: <http://www.worldbank.org>.
(168) NLGSR 2000/04.
(169) Alta Reg 160/1979, s 4(1).
SARI GRABEN ([dagger]), Sari Graben LLB, LLM, PhD, Assistant Professor, Department of Law & Business, Ryerson University. For comments on this article, I thank the anonymous reviewers of the journal and its editors. I also thank Fulbright Canada and the Social Sciences and Humanities Research Council for funding that supported this work.
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|Publication:||University of British Columbia Law Review|
|Date:||Jul 1, 2014|
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