Beyond the Indian Act: Restoring Aboriginal Property Rights (review)

Ted Chamberlain’s 2004 book, If This Is Your Land Then Where Are Your Stories?, famously relays the question posed by a First Nations elder to the Crown’s representatives sent to work out arrangements for a certain settlement of the land question in the twentieth century. The elder queried when they would hear the stories of the land from the treaty commissioner – the very land claimed by Canada and the title for which was reserved to the Crown in right of Canada. Tribal traditions so deeply steeped in a sense of place and connectivity to place have detailed narratives for creation, belonging, and place, narratives that had not been disrupted or displaced, despite colonization, the Indian Act, a hundred decisions of courts or tribunals. The elder posed the critical question – if this is your land, then where are your stories? We are defined by our stories, our narratives of Canada, and more recently our new attempts at a more postcolonial narrative relating to land, reconciliation, and living here together. We may all be here to stay, in the famous words of the Supreme Court of Canada in Delgamuukw, but the persistent problem is that the “here to stay” part is full of dispute, disadvantage for the aboriginal parties, and no clear roadmap for the rules of sharing those stories, or whose stories trump, or how they coexist to form a collective story.

Legal and constitutional stories are how we position our place in time, in space, in relation to place and each other. At one point there was no higher value in those legal stories than the integrity of the state – since the Secession reference, it is clear that there are more fundamental democratic values around consent and shared narratives that trump even sovereignty. For First Nations peoples, those stories translate into land tenure; for newcomers, the stories point backward to some act or understanding of acquiring land title. If you live in the middle of this quagmire, as a First Nations person, chances are you will be butting heads against an Indian Act regime; it will define some of your life possibilities, regulate your participation in the broader marketplace and Canadian society, and provide both rights and burdens unlike other Canadians. In short, it is a mess we have been trying to sort out for at least 150 years, and with greater urgency in recent times as we peel back the layers of some of the Crown’s stories.

This book, co-authored with a well-known theorist in the area of aboriginal-Canadian relations, Thomas Flanagan, tries a fresh approach to these issues but also proves that even our out-in-front theorists and political advisors have stories that change through time. Professor Flanagan is seen in some circles as anathema to a reconciliation approach grounding a new relationship between First peoples and Crown on that broader exchange of stories, conversations, and engagement. This book marks an important departure in his work. Along with his colleagues in the academy, he probes tough questions about the need to improve the life circumstances of First Nations peoples, and unlike some of his previous positioning that at times sounded almost like blaming the victims of this bureaucratic colonial regime, he praises those who are desperately trying to work around it to build an economy, develop their communities together, and tell their stories. This is a good move and so welcome. Professor Flanagan has not been shy to offer his prescriptive answers in great detail in the past. In this book, he and his co-authors are more circumspect and even polite and moderately detached – offering a defence of free-market economies with secure and efficient transactions as a model for consideration, rather than as the solution to all of the problems. This more modest approach, although daring at some levels, is fresh, and the book is deserving of a close look.

The book is ambitious. It...