Last October members of the Nisga’a Lisims government gathered at the village of New Aiyansh (population: 1,800) in the chambers of their civic headquarters, an impressive post-and-beam structure with large windows overlooking the Nass River Valley that would put most aging city halls to shame. They were there to give official assent to the so-called Landholding Transition Act, making the Nisga’a the first band in Canada whose members would be able to put their name on a title and become fee-simple owners of once federally owned reservation land. The significance of the occasion would be lost to the average Canadian homeowner, for whom property ownership is something to be taken for granted, or at least commonly aspired to. Yet to the Nisga’a, it is one of the most profound moments in the unfolding of their treaty, known as the Nisga’a Final Agreement.
That historic treaty, the first modern-day treaty in B.C., was signed with the federal and provincial governments in 1998 and came into effect on May 11, 2000. It attempted to balance self-determination with greater integration into Canadian society and included $196 million in cash, annual financing of $33 million, 2,019 square kilometres of land (an area two-thirds the size of Metro Vancouver) and fish and timber rights. Two years ago, the Nisga’a started paying GST, and in 2013 they’ll start paying income tax. The treaty also included the transfer of reservation land to the band, from which flowed the Landholding Transition Act and a move away from the traditional model of communal land ownership.
Although the landholding act affects only city lots in the four Nisga’a villages, totalling 10 square kilometres – or about half of one per cent of the land ceded to the Nisga’a – it has both practical and immense symbolic importance. “This is very significant for the Nisga’a as a step toward true self-government,” says an enthusiastic Kevin McKay, chair of the Nisga’a Lisims government, over the phone from his office in New Aiyansh. “The opportunity to own land fee-simple will enable people to use their land as collateral to get a loan from the bank or transfer land onto family members.”
But the move has also stirred up fierce debate within First Nations communities across the province. On the one side, supporters hope it will enable the Nisga’a to walk into the bank with heads held high to finance their dreams – that by establishing private property rights, the cycle of dependency will end. But on the other side are critics who see the landholding act as a cultural sellout and a desperate measure by a native band that’s been backed into an economic and social cul-de-sac.
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Colonialism 2.0: Taiaiake Alfred, a professor in indigenous governance at UVic., fears the Nisga'a are "embracing their own assimilation"The Nisga’a’s traditional territory – centred around the villages of Kincolith, Greenville, Canyon City and New Aiyansh in northwestern B.C. – is stunningly beautiful and steeped in a cultural legacy that stretches back some 10,000 years. Known as the Nass Valley, the area lies about 90 kilometres north of Terrace and encompasses verdant forests, rushing glacier-fed streams, snowy mountains and surreal lava beds from a 1750 volcanic eruption – the kind of landscape that would be fit for a Super Natural B.C. billboard. Today where the Nass River squeezes past Canyon City, it’s not uncommon to spot sea lions, a local gastronomic delicacy, swimming up the river from Portland Inlet near Kincolith to feed on salmon.
Almost since the Indian Act became law in 1876, the Nisga’a nation (today totalling some 6,400 people) has been a renegade. In 1890, in response to the Indian Act, Nisga’a elders gathered to form a land committee and pursue their rights and title. But they were handcuffed by a Canadian law that until 1951 forbade Indians from raising money for their cause. That same year, under the new name Nisga’a Tribal Council, the quest to assert title to the Nass Valley was renewed.
In 1969 then prime minister Pierre Trudeau and his minister of Indian Affairs, Jean Chrétien, tabled the poorly named White Paper that proposed disbanding the Indian Act and absorbing First Nations into mainstream society. To bolster its argument, the federal government targeted property ownership, saying that, “To be an Indian is to lack power – the power to act as owner of your lands.” Almost as soon as it was publicized, the plan was skewered by Canada’s First Nations. In a rebuttal dubbed the Red Paper, leading native activists including Cree lawyer Harold Cardinal lambasted the proposed end of the Indian Act as being Trudeau’s thinly veiled attempt to assimilate First Nations and remove their unique claim to Canadian soil. After widespread protest, Trudeau abandoned the initiative and the Indian Act remained. However, the Nisga’a, under the leadership of hereditary chief (and B.C.’s first aboriginal cabinet minister) Frank Calder, were a lone voice in the wilderness that had expressed at least muted support for the White Paper.
In the early 1970s, the crusading Calder sued the province over lands historically occupied by the Nisga’a. Though the lawsuit failed, it went to the Supreme Court of Canada, which in a 1973 decision acknowledged the existence of aboriginal title, laying the foundation for the Nisga’a treaty. But it would be another 25 years before the Nisga’a got their treaty. When the feds, province and Nisga’a finally signed the Final Agreement in 1998, it was heralded as the high-water mark for treaties, marking the abolishment of the Indian Act for the Nisga’a people.
Nisga’a leaders had long blamed the often-appalling on-reserve living conditions on the Indian Act, which micromanaged virtually every aspect of economic and social life on the reserves. It was originally administered by Indian agents, often derisively referred to as “white chiefs,” and natives across Canada were essentially rounded up and shoehorned onto Indian reservations. They could own houses but not the land underneath, creating a state of perpetual tenancy. This troublesome legacy continues today: without equity, natives have been unable to go to banks for financing the way ordinary Canadian citizens can. With personal land ownership, the Nisga’a hope to turn a socio-economic corner, moving toward self-sufficiency, prosperity and a new-found pride and energy that could spur entrepreneurship.
For inspiration, Nisga’a leaders such as Kevin McKay have turned to the ideas of Peruvian millionaire, economist and 2002 Nobel Prize finalist Hernando de Soto. It might seem an odd wellspring of inspiration for a remote B.C. native band, but de Soto’s internationally lauded thesis argues that poverty in the developing world is largely a function of citizens not having formal ownership rights to their property. It’s an argument that resonates particularly strongly on Canadian native reservations, where near-Third World living conditions are sadly common.
[pagebreak]In theory, the Landholding Transition Act will enable enterprising Nisga’a such as Bonnie Stanley in Kincolith to follow a dream. For several years, Stanley says, she has been trying to find a permanent home for her catering company, U Seafood, U Eat It, and open a restaurant. Up until now, her only option has been to go to the Nisga’a Lisims government with cap in hand asking for economic development funding. And the Nisga’a government is no different than governments anywhere: often painfully inert and cautious, extremely bureaucratic and not exactly a dynamo of entrepreneurialism.
If the landholding act is meant to be a catalyst for entrepreneurship, then much homework still needs to be done. Along with fee-simple land ownership comes the not-so-pleasant task of paying property taxes. Using property as collateral means repaying loans or risking default; it’s inevitable that some Nisga’a will lose their property in foreclosures. That said, McKay believes his people are entering into this arrangement with “eyes wide open,” fully aware of the risks and benefits: “This is what our people told us they want.”
While Hernando de Soto’s logic, that private property rights are a ticket out of poverty, looks good on paper, any move to individual ownership could prove a tall order for a region far removed from major markets and desperately in need of an energizing boost.
There is uneasiness in the Nass Valley these days. Unemployment remains staggeringly high in the four villages, hovering at around 60 per cent. Those lucky enough to have work are likely on the government payroll, which now includes an elected council for each of the four villages as well as the Nisga’a Lisims government. The once lucrative forest industry is moribund, salmon returns on the Nass River are declining and young Nisga’a are finding fewer and fewer reasons to stay in the Nass Valley. Adding to the challenges, the Nisga’a Nation is steadily eroding its capital base, which emerged as part of its treaty. The balance sheet is telling: between 2007-08 and 2008-09, the Nisga’a Lisims government’s net financial assets plummeted from $263 million to roughly $154 million.
Beyond the Nass Valley, people are observing the Nisga’a land experiment with great interest. Free-market pundits such as Joseph Quesnel, a policy analyst for the right-leaning Frontier Institute, are cheering this new approach to native land ownership, calling the Nisga’a land act a “quiet revolution.”
“It is important because such property ownership is foundational for wealth creation,” wrote Quesnel in a November column in the National Post. “Most businesses nowadays are financed through loans obtained by placing an entrepreneur’s home up as security.”
Gordon Gibson, former B.C. Liberal leader, senior fellow at the Fraser Institute and current adviser to the Gitxsan Treaty Society (which handles treaty negotiations for a number of First Nations in northwestern B.C.), agrees that land privatization within the Nisga’a community is a positive move, an approach to land management that he addresses and promotes in his latest book, A New Look at Canadian Indian Policy. But that’s where his optimism ends. Aside from this still unproven piece of Nisga’a legislation, Gibson remains as skeptical of the Nisga’a treaty as he was when it became law 10 years ago.
Referring to the Nisga’a Final Agreement, Gibson wonders, “The bigger question is, How is this experiment working? This is a deal that involved cash, land and an Indian government with very considerable powers, and nobody really knows if it’s working or not.”
[pagebreak]The recently passed land act has also reignited vociferous criticism from the broader native community. If the Nisga’a treaty was considered by Ottawa and the provincial government as a benchmark for deal making, it hasn’t resulted in an avalanche of treaties. Despite rosily optimistic language on the B.C. Treaty Commission’s website and more than a billion dollars spent on consultant and lawyer fees, the process has borne little fruit since it was launched in 1992: just two treaties have been completed, with the Tsawwassen and Vancouver Island’s Maa-nulth First Nation (the Nisga’a Final Agreement was negotiated outside of the B.C. Treaty Commission process).
Taiaiake Alfred, director of the School of Indigenous Governance at the University of Victoria, says the Nisga’a agreement, rather than being the “high-water mark” for treaties, is an act of surrender that will ultimately dilute Nisga’a presence on their traditional territories in the Nass Valley. Alfred thinks the Nisga’a government is beyond naive if it believes fee-simple ownership of what might turn out to be no more than a handful of city lots in remote native villages will be a silver bullet for a struggling local economy. Furthermore, he calls the move toward a “European style” of private property an affront to traditional native values around communal ownership that will ultimately result in an exodus from the Nass Valley as Nisga’a with few other opportunities cash out of their properties.
“Does owning land help the people in Terrace or McKenzie these days where the economies are hurting?” asks Alfred. “Really this is not an economic development issue; it’s a colonization issue. Everybody knows that the Nisga’a are going broke and they are being put in the position where they will have to sell their land. In my view, the Nisga’a are embracing their own assimilation.”
Stewart Phillip, grand chief of the Union of B.C. Indian Chiefs, is less scathing in his choice of words but equally skeptical. He believes native leaders will respect the path chosen by the Nisga’a even if they don’t agree, based on the conclusion that self-determination naturally results in both good and bad decisions. According to Phillip, privatization of communally owned Nisga’a land falls in the “bad” category, describing it as a desperate measure by a First Nations government rapidly burning through its finances and struggling to meet the social and economic needs of its people.
“I wish them luck. The economy is in rough shape, and I don’t think it matters what you do in terms of land ownership,” Phillip says.
Luck mixed with a bit of independent entrepreneurial spirit is what the Nisga’a will need as they continue their socio-economic experiment. The Nisga’a have developed thick skin over the years and are accustomed to criticism; they don’t claim to speak for anyone else. If other bands choose to follow their lead, that’s their choice, says Joseph Gosnell, a former Nisga’a chief and Order of Canada recipient who was a key player at the treaty negotiating table.
“The land act is important for us, but we’re not going to undo more than a century of government telling us what we can and cannot do overnight. It’s going to take time,” Gosnell says.
While many First Nations in B.C. are once again adopting a combative stance, Nisga’a leaders sheathed their swords a decade ago and are busying themselves knocking down the distinctions that have separated native people from the rest of Canada for more than a century.
And this spring, when juvenile salmon swim down the Nass River to the ocean, Nisga’a will be feasting on sea lion in the heart of the Nass Valley as they celebrate the 10th anniversary of their treaty. Once again the Nisga’a are breaking rank with natives elsewhere in Canada as they move toward a model of private land ownership. And depending on who you talk to, it will either summon a new age of pride and entrepreneurship in the Nass Valley, or it will be a tremendous flop, a nail in the coffin of the Nisga’a nation.
