Indigenous Peoples and Governance Project
1. Specific Questions
Too much reflection on issues relating to Aboriginal Peoples in Canada has been centred on questions of what might be classified, broadly, as public law: land claims, treaties, sovereignty, traditional rights, and so on. Some attention has also been devoted to issues of criminal and carceral law, to domestic relations (family law, successions, filiation), public health and education. All of these are important issues.
Nonetheless, the economy has not received nearly the attention it deserves. Apart from the framework legislation of 1999, which has not been acted upon broadly, almost no effort has been made to think through the conditions under which some form of legal regime that can be coordinated with a market economy may be developed.
The Big Questions
Specifically, to what extent does the regulatory regime governing the economic circumstances of Aboriginal Peoples (restrictions on alienation under the Indian, failure to recognize and protect traditional knowledge through regimes of intellectual property, non-exigibility of moveable assets on reserves) impede the economic development of Aboriginal territory and the economic flourishing of Aboriginal Peoples?
And what would be the impact of seeking to modernize this economic regime on conceptions of identity, sovereignty and governance within First Nations communities and territories?
The Specific Questions
1. what specific legal regimes of property (writ large) are actually operative in first nations communities?
2. does the formal regime of the Indian Act actually bear any relationship to the manner in which “property entitlements” are conceived and wielded?
3. what are the commonalities and differences between conceptions of property as these affect land, resources, water, animals, domestic manufactured product for personal consumption and consumer durables?
4. is there an emerging regime of intellectual property law in first nations communities?
5. to what extent are conceptions of property linked to conceptions of personal and community identity?
6. Is it possible to sustain a local economy that is relatively impermeable to global market pressures and other external forces in the larger world, or are we all consigned sooner or later to adopt the political, economic and social structures of investment capitalism?
7. Is it possible to create, nurture and develop indigenous enterprises and entrepreneurial activity that can compete with business endeavours arising in the more general post-capitalist economies that surround them?
8. The Indian Act currently enacts a series of restrictions on the granting of security over property owned or exploited by “registered Indians”, and in addition contains several prohibitions on the mortgaging, hypothecation or sale of “property reserved to Indians”. What will be the economic and political impact if legislative proposals to modify or repeal these restrictions are adopted?
9. The economic development literature suggests that access to secured credit is the primary trigger of economic development – even more so than modern forms of business enterprise that separate ownership from management (notably, the corporation). What will be the important collateral influences on indigenous communities of this type of economic development?
10. A number of studies in South America and in Central Europe indicate a close correlation between what is called the “democratization of debt” and “political democracy”. Is it a necessary consequence of a trading economy that traditional governance structures will give way to formalized institutions such as elective band councils?
11. A successful trading economy requires resources to exploit and exchange. What will be the impact on governance of commodifying land and intellectual property (traditional knowledge) in particular?
12. More generally, what counts as property? what kinds of property may be subject to private appropriation? what are people entitled to do with their property? and what types of relationships can more than one person at a time have with whatever it is that is to count as property?
13. A successful trading economy requires entrepreneurs. What will be the impact on governance of promoting a conception of human identity and interpersonal interaction that facilitates the dissociation of political, social and economic citizenship?
14. More generally, what are the legal forms by which assets, labour and ideas may be combined into successful production? what are the devices by which ownership and management may be separated so as to organize large-scale commercial activity? and what are the means by which, once separated from ownership, the managerial function can be harnessed to the pursuit of the best interests of those who own or participate in the endeavour (shareholders and stakeholders)?
15. A successful trading economy requires a legitimated and stable framework of social, legal and political institutions. What will be the impact on governance of developing institutional arrangements that recognize and heighten the protection of private property and the enforcement of executory contracts?
16. More generally, what will be the impact of creating formal institutions and the agents of public order and debt collection to oversee the seizure and sale of property, and dispute settlement institutions structured to produce winners and losers?
17. Does the basic legal structure of property law found in western trading economies depend on the particular notion of individual personal identity and agency that developed in the late eighteenth century in England and France? If so, how can these western legal forms be adapted to the needs of aboriginal collectivities that seek, at the same time, to preserve and nurture their rather different conceptions of identity, membership and belonging?
18. Did the gradual dissociation of political sovereignty and governance from collective ownership of land provide the preconditions for large-scale exploitation of natural resources that was the engine of the industrial revolution in Europe? If it did, is it necessary for all modern trading economies to privatize land-holding and to separate political structures from direct collective ownership of territory?
2. Timeframe
My rough timetable is as follows.
June 1, 2006 - June 1, 2007:
Research on the literature concerning modifications to the Indian Act
Research on laws already developed by first nations to govern their economic affairs
* Comprehensive study of the international development literature.
June 1, 2007 – June 1, 2008:
* completion full set of theoretical studies in draft monograph form
* revision of studies and submission;
Consultation with three first nations - one in Quebec, one in Ontario, one in BC about the model of property and security interests developed under VRQ.
* development of experimental survey instrument for field research as to connection between property regimes
June 1, 2008 – Sept. 1, 2009:
* administration of survey instrument and tabulation of results
* Re-consultation with these first nations about the implications of this model for conceptions of governance and identity
June 1, 2009 – Sept. 1, 2010
* consultation with banks and financial institutions about the proposed structure
* publication of articles resulting from the survey instrument
Sept. 1, 2010 – May 1, 2011
* drafting and publication of policy papers
* final synthesis
3. Relation of Questions to Overall Theme
These research questions pose the central question of the manner in which legal artefacts and institutions transcend general issues of public law -- s. 35 of the Canadian Charter of Rights and Freedoms, treaties, ancestral rights, sovereignty, the criminal law -- and speak first and foremost to identity. Here are my hypotheses about the relationship.
1. There is a close connection between economic structure, social structure and political structure.
2. The relationships are not one-way or deterministic. Perceptions about identity shape perceptions about property and governance institutions. Conceptions of governance reinforce perceptions of identity, and institutions of the economy. The logic of the economy and of what counts as property privileges certain understandings of personhood, which in turn influence the demands one makes on governance institutions. Identity is essential to self-understanding.
3. The logic of contemporary regimes of secured credit in the world-wide trading economy presumes that, at least to some degree, persons will consider themselves as debtors and creditors independently of how they see themselves as members of families, communities and nations.
4. Regardless of how one configures regimes of secured credit, there will be a movement towards what may be called individualism in economic dealings. That is, the identity of members of first nations communities will be affected by economic development under a market logic. Of course, this is not surprising since a similar phenomenon may be observed in respect of the perspectives of first nations entrepreneurs involved in trade with non-members of their community – for example, in legal activities relating to gambling and cigarettes, and the other activities collateral thereto.
5. Regardless of how one configures regimes of secured credit, they will generate economic disparities between members of first nations communities. Once again, this is not surprising since a similar phenomenon has already been observed with respect to other trading activities undertaken by first nations entrepreneurs.
6. Explicit recognition of members of first nations as having an identity as individual market actors, and explicit acknowledgement that economic activity generates economic disparities, will generate consequences for political authority. For example, one might predict that political institutions will become more formalized, more structured and more bureaucratized. The manner and extent to which this occurs will be shaped by particular choices that are made in relation to economic institutions.
7. For first nations communities in Canada to make informed political choices about the kinds of communities they wish to build and develop, the relationships between the economy, identity and governance have to be carefully explored with a fine-grained analysis of private law institutions. Continued rhetorical invocations of public law dogma will not provide the information needed to confront the challenges of “aboriginal economic modernity” and to make these fundamental governance choices.
4. Forms of Interaction
Of the various projects in this site, those of Étienne leRoy, Marc-Urbain Proulx, Ysolde Gendreau, Richard Janda, Daniel Thomas and Mylène Jaccoud are closest to mine. I would hope that we could arrange for meetings and documentary exchanges.
I would also need to make contact with our partners to find good locations for my empirical research.
I anticipate that I will not have enough material on the ground until this time next year for a seminar to be truly productive.
5. Outputs
My primary hope is that due attention will start to be paid to issues of private and commercial law as institutional foundations for effective indigenous peoples’ governance.
