One of the things that has struck me about the increased attention to Canada’s relationship(s) to First Nations  has been the rise of what I would term “instant expertise.” Not everybody is thrilled with it. For instance, Tobold Rollo’s recent blog post takes the arguments of Tom Flanagan (and others) to task regarding the historical standing and consequent legitimacy of First Nations political and legal claims.

I too have difficulty’s with Flanagan’s arguments, although for some different reasons. I think the historical claims misconstrue, and at least mislead.  This leads to conclusions that are sound (the logic is right) but invalid (the premises are mistaken). My critiques are interested in Flanagan’s co-authored book, Beyond the Indian Act, which sets out an argument for moving towards fee-simple title (i.e. private tenure) for First Nations land.

I will not post the full argument here, but the abstract below will provide some background to how I approach the issue. I have a paper that I’ve been working on, and will be revising in preparation for Keeping the Promise: The Path Ahead to Full Modern Treaty Implementation. At that conference I will present these arguments in full. Until then, here is the summary:

Land, water, territory: what does the privatization of First Nations land imply for other resource rights?

ABSTRACT:  In late 2011 the Canadian Government began studying private property, or fee-simple title options for First Nations land. It began changing rules regarding leased land in 2012 as part of its budget, Bill C45. These types of changes, however, are not only legal. They can have broader social and ecological implications because definitions of “land” and property may affect other resource rights, such as those to water. This paper begins by examining the idea of territory, which has at its roots the notions both of land (Latin: terra) and social power, or terrere (from the Latin: ‘to frighten’). Recent work in political geography has identified the ways in which western states exercise cultural violence through standardized forms of measurement to develop private property systems. The contribution of this paper is its consideration of how cultural definitions of “land” are also part of state territorial claims. Historically, several Canadian jurisdictions have supposed a legal division between land and water. This division, as several First Nations legal scholars point out, is neither cultural appropriate nor ecologically defensible as a basis for the recognition of First Nations water rights. Using this example, this paper suggests ways in which the definitions of “land” required for the privatization of First Nations territory may continue, and possibly exacerbate, struggles for a full suite of resource rights. The argument of the paper is that any redefinition of “land” that is designed to fit private property, or fee-simple title systems, requires addressing a broader suite of resource concerns in order to ensure that no further cultural violence is accomplished through the potential privatization of First Nations land.