Deepening counter institutions: Property,lands,relations,and the economic future of the Tŝilhqot’in

Introduction

In 2014, the Supreme Court of Canada delivered a landmark decision recognizing Aboriginal title not only in theory, but in area and in reference to the Tŝilhqot’in Nation. In doing so, the SCC defined these as

ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land. (Tsilhqot’in Nation v. British Columbia, 2014, para. 73)

Although the struggle of First Nations for land rights continues, the Tŝilhqot’in decision has shifted the question (and indeed struggle) over how reinstated title and rights over land can be exercised to fulfil the visions of First Nations for economic futures and well-being. Legal and related scholars agree that the implications of the Tŝilhqot’in decision will be lasting and far reaching in terms of the political-economic trajectory of British Columbia and Canada (Bankes, 2015; Christie, 2015; Coates and Gibson, 2014; Coates and Newman, 2014). Few analyses, however, focus on the potential outcomes of the title decision for the Tŝilhqot’in people at the household level, particularly as concerns socio-economic development, well-being, and the satisfaction of critical needs like housing. Efforts of the Tŝilhqot’in to address housing are widespread and tend to be viewed as an interconnected part of territorial stewardship, governance, and a sustainable economic future. Housing then, is contingent upon the institutional framework that the Tŝilhqot’in establish upon Aboriginal title and newly emerging jurisdictions linked to that title. The institutional framework consists of a political structure, a property rights structure, and a social structure (North, 2005), although in the context of Indigenous governance, such structures are not so easily compartmentalized. In this paper, I strategically focus on property as a concept, which presents perhaps the greatest dilemma facing the Tŝilhqot’in as they seek to re-establish an institutional framework that enables full control over their lands and jurisdiction, that satisfies exigent needs, while maintaining their values and visions for the future.

Importantly, the title decision has its limitations and should certainly not be considered the fount of Tŝilhqot’in or Indigenous power. The Supreme Court in Tŝilhqot’in has said that Aboriginal title can be infringed by economic development or environmental protection activities ‘of broader societal interest’ (McCrossan and Ladner, 2016), making it clear that meaningful control does not necessarily flow from holding Aboriginal title. Although the doctrine of infringement is problematic, Christie argues that for First Nations groups to enjoy true self-governing jurisdictions requires that they work ‘outside' the limits of Canadian jurisprudence and institutional frameworks, and assert their own rule-generating forces (Christie, 2015). This in turn requires perhaps, as Napoleon and Borrows both assert, an acceptance that Indigenous laws can be understood and applied across societal bounds (Borrows, 2015a; Napoleon, 2015). Necessarily then, the Tŝilhqot’in have been pursuing a transformative strategy towards self-governance (Nikolakis, 2019), both in collaboration with the crown (via the Nenqay Deni Accord and more recently the Gwets'en Nilt'i Pathway Agreement) and independently (or outside of the common law) via the assertion of Tŝilhqot’in Laws (dechen ts’edilhtan) and territorial stewardship within ancestral (nen) lands including the asserted Dasiqox Tribal Park. Hence, in 2015, the Tŝilhqot’in enacted the Nemiah Declaration, and since 2019, they have enacted and asserted at least four other Tŝilhqot’in laws (Tsilhqot'in National Government, 2020). The Nenqay Deni Accord is a reconciliation framework agreement which responds to the title declaration and addresses priority areas for the Tŝilhqot’in Nation. Central to this agreement is the creation of Category ‘A’ lands which refer to areas within Tŝilhqot’in territory that are agreed by the Province of British Columbia and the Tŝilhqot’in Nation to be under the ownership, control and management of the Tŝilhqot’in Nation, excluding the declared title area and Indian Reserves (IR). Within Category ‘A’ lands, the Tŝilhqot’in Nation has the right to proactively manage, enact laws, and decide the uses of the lands and resources (Tŝilhqot’in Nation and BC Government, 2020). At this writing, the legal status of Category ‘A’ lands remains uncertain and are to be determined by the parties through further negotiation. Equally uncertain is the legal status of title and IR lands moving forward, as well as other areas of the territory in which the Tŝilhqot’in have been asserting their laws as caretakers, as in the Dasiqox Tribal Park.

The recognition of Aboriginal title essentially confers upon the Tŝilhqot’in people the same benefits of owners of fee simple property under common law, but at the same time, the sui generis and collective nature of Aboriginal title makes it something very much unrecognizable under common law. As Graben and Morey observe (2020), although the courts have essentially liberalized Aboriginal title by making it analogous to fee simple private property, the Tŝilhqot’in may find that this characterization restricts their ability to collectively make decisions and allocate use according to their own laws. This indicates that title lands, as well as other lands being negotiated by the Tŝilhqot’in including ‘Category A’ lands create ‘property gaps’ which represent legal uncertainty within both common law and Indigenous law (Egan and Place, 2013). While these gaps offer opportunities for the kinds of institutional innovations required for the Tŝilhqot’in to fulfill their goals for socio-economic development and housing, they also highlight an enduring dilemma faced by First Nations attempting to enact their own laws and institutions for territorial self-governance. Just as Blomley (2015: 169) recognizes the modern treaty process in British Columbia as ‘not only an allocational struggle over who gets property, but also an ontological contest over what property is', so too will be the struggle of the Tŝilhqot’in as they work to define what Aboriginal title is in practice and how it shall be governed. Doing so requires an articulation of Indigenous land relations based on traditional governance practices and laws, yet the challenge remains for the Tŝilhqot’in, as all First Nations seeking to (re)build their own institutions, to do so in a way that does not acquiesce – epistemologically and ontologically – to settler-colonial concepts of property. Instead, any post-colonial institutional development will likely benefit from careful consideration of the array of social relations and values that resemble property within Tŝilhqot’in law and articulation of these principles in ways that are perhaps cognizable to the common-law without being subsumed by it (Bryan, 2000; Hanna, 2015). For example, Bryan (2000) argues that although institutions in relation to proprietary entitlement exist in diverse ways across First Nations communities, ownership as understood within British common law never actually exists or occurs, making any translation problematic. Hence, to refer to Aboriginal title and emerging governance institutions as property is to allow the settler-colonial worldview to be imposed upon the Tŝilhqot’in (Nadasdy, 2002).

In what follows, I draw from my experience supporting the Yuneŝit’in Government and the Tŝilhqot’in National Government (TNG) over the last four years as a researcher and practitioner, and from the knowledge imparted upon me by leaders within those entities. Throughout the duration of this research, I visited Tŝilhqot’in territory seven times during which time I interacted with community leaders, staff, and members, both formally and informally. Much of my contextual knowledge of the Tŝilhqot’in Nation and the First Nations context more broadly in British Columbia was derived through a process of relationship building, and the commitment to fostering respectful relationships with First Nations peoples and communities. This included formal research protocol agreements with the Yuneŝit’in Government and with the Tŝilhqot’in National Government which enabled access to community members, Nation staff, events, and documentation. The relationships that I built as a part of this process have been foundational to this research – a process consistent with what Kuokannen refers to as an Indigenous research method of relationality. This relationality, which can also be understood as a form of reciprocity (Kovach, 2019), has contributed to my own sense of obligation to support the visions of the Tŝilhqot’in and other First Nations partners, and to maintain these partnerships over the long term.

Material reference below includes nine semi-structured and lengthy interviews with Yuneŝit’in and TNG staff and leaders, as well as numerous informal conversations (Kunkel, 2015) related to housing, economic futures, and land management broadly. As a non-Indigenous researcher working with First Nations communities, I have relied on my experience, deep knowledge of the context, and ongoing relationships in order to confidently interpret the meanings of the stories and ideas shared with me. I continue to seek validation of the findings of this study through ongoing engagement with the Tŝilhqot’in and other First Nations community partners, including through the development and implementation of projects relevant to the findings of this paper in collaboration with Yuneŝit’in and TNG. However, the views expressed in this paper are my own and not necessarily representative of those within Yuneŝit’in and TNG.

I argue that the Tŝilhqot’in, empowered by Aboriginal title, have an unprecedented opportunity to shift the pattern of First Nations institutional development by creating ‘land relation rules’ ¹ within emerging jurisdictions and which also respond foremost to Tŝilhqot’in legal principles and values. Rather than acquiescing to dominant settler-colonial notions of certainty, efficiency, and the economic benefits that these characteristics of liberal property systems purport to provide, the Tŝilhqot’in and other First Nations can find stability, legitimacy, and socio-economic/ecological benefits within the fundamental principles of their own traditions, laws, and values, which ultimately regard land as relations.

The continued making of native space

It is generally accepted that property, in its many diverse forms, is an integral aspect of what it means to be human and is one of the fundamental institutions, whether informally or formally governing social and therefore economic relations (Nadasdy, 2002). As such, property has always been and continues to be the primary site of intervention of the settler-colonial project. The arrival and settlement of Europeans in Canada marked the beginning of a process of dispossession and commercial development of the lands and resources upon which First Nations have relied for millennia. In British Columbia, formal treaties never materialized in the same way that they did across the rest of Canada and the United States, ² and First Nations were pushed by colonial authorities and settlers into some 1500 small reserves accounting for slightly more than one third of one percent of the land of the province (Harris, 2004). Through this process, colonial authorities were attempting at once to open up more territory for European settlers, while at the same encouraging a more ‘efficient’ use of land and the ‘domestication’ of First Nations persons (Perry, 2003). This making of ‘native spaces’ deprived First Nations of the land and resources needed to sustain their culture, livelihoods, and traditional social structures, while allowing for the establishment of western settler-colonial institutions of law, property, and state (Harris, 2002).

The Indian Act of 1876, which was a consolidation of previous regulations pertaining to First Nations, created the band system of First Nations administration in an attempt to destroy existing institutions, hereditary governance, and community economic structures while imposing settler institutional values (Mathias and Yabsley, 1991). The Indian Act enabled the Federal government to intervene in a wide variety of internal band issues such as the management of Indian lands, resources and moneys, and housing, all in an effort to promote assimilation and ‘civilization’. At the same time, it further entrenched into law the restriction on First Nations people to the right of preemption – a process of ‘property claiming’ that was rapidly underway within their territories (Mathias and Yabsley, 1991). Thus, much of the fee-simple tenure that exists today in British Columbia was created out of a process from which First Nations were effectively banned. As a result, while First Nations continue to gain advantage in the battle over territorial jurisdiction, they face the challenge of overcoming what has become a ‘reserve mentality’, where members and leadership alike in many cases remain subdued and self-constrained in terms of territorial ambitions. Such a condition is perhaps symptomatic of a widespread neoliberal ‘governmentality’ which serves to self-discipline First Nations leaders and members into truncated territorial or other ambitions, where the reserve space is seen as providing legal and economic ‘certainty’ for the economic well-being of the community (Blackburn, 2005; Brown, 2014; Hale, 2005).

Reinforcing this is the onslaught of liberal private property rights prescriptions which continue to be advanced as the solution to the ‘problem’ of housing and economic disparity within First Nations reserves. First Nations land and natural resources, it is argued, will never realize its full economic potential as long as it is held as collective property subject to political and collective management (Flanagan and Alcantara, 2002; Raybould, 2006). Fundamental to this claim is the idea that First Nations poverty is the result of market failure on reserve due to high transaction costs which deter private investment and therefore stifles increased productivity (Flanagan et al., 2010). This explicit institutional logic of efficiency can only be resolved, it is argued, through strengthened individual property rights which encourage business development and lead to the improvement of housing by allowing for individual ownership and the burdening and encumbering of assets (Steiger, 2006).

Currently, Articles 28 and 89 of the Indian Act prohibit lending institutions from seizing Indian assets and property in the event of a default. This means that First Nations individuals have very difficult times obtaining mortgages and financing – a legislative flaw which is attributed as the primary reason for housing shortages and the deterioration of homes on reserve (Alcantara, 2005). Various legislative remedies have been developed to encourage ownership and investment on reserve over the last several decades, including the use of Certificates of Possession, land management powers for First Nations governments under the First Nations Land Management Act, leases, and band or government backed mortgages. More recently, the individual property ‘ownership’ approach has taken hold within the modern treaty process, and particularly within policy circles linked to the Federal government, and through emergent First Nations institutions such as the First Nations Tax Commission. Through their proposed First Nations Property Ownership Act (FNPOA), Flanagan et al. (2010) alongside others continue to push an initiative that they assert will solve the socio-economic and housing issues on-reserve by enabling the creation of fee-simple private property.

According to their proponents, new forms of ‘fee-simple plus’, either through final agreements or Federal legislation offer a solution unique to the First Nations situation in Canada. Fee simple plus means that underlying title to the land remains with the First Nation and that any land escheated to the crown will be transferred back at no cost to the First Nation. These are said to resolve the deficiencies of other failed land titling programs by maintaining reversionary title to First Nations, by allowing for land to be held first collectively and then individually in fee simple on a voluntary basis, and by including a Torrens-style land registry controlled by First Nations (Flanagan et al., 2010). However, despite the land reversionary clauses built into treaties as well as the FNPOA legislation being promoted, fee simple is ultimately a notion derived from the Anglo-Saxon feudal property system in which the landholder technically is considered a tenant of the holder of underlying title: the Crown (Egan, 2013). Thus, despite the certainty that treaties and other laws purport to provide to First Nations, there remains debate as to where allodial or ‘real title’ actually rests, and uneasiness with the very meaning of the property forms which structure them.

Interrogating private property

The advancement of private property institutions is one of the hallmarks of not only settler-colonialism but also modern neoliberalism (Hale, 2005; MacDonald, 2011). Schmidt argues that the First Nations Property Ownership Act legislation being advanced, which attempts to relay what are essentially municipal powers upon First Nations governments over reserve lands, simply repackages dispossession as the restoration of Indigenous territory and amounts to little more than the transformation of First Nations land into a form of property that is compliant with liberal legal-economic institutions (Schmidt, 2018). The argument for fee simple tenure reform on-reserve is that it would make lands available for collateralization, development, and alienation on the real estate market, therefore leading to wealth maximization (Carpenter and Riley, 2019). Alcantara (2003) argues for example that individual title to land is important to the economic well-being of a person, and that security of title gives an individual the ability to build a home or start a business. Dempsey et al. therefore consider liberal property rights a ‘neoliberal technology of inclusion’ (2011: 4), which aims to address issues of ‘equality' by enabling First Nations to have the same access to credit and property rights as other Canadians, thereby stimulating housing and other markets within First Nation communities. From this perspective, by allowing for individual home ownership liberal property rights discipline home owners into acquiescing to the dominant political-economic system and the ‘status quo’ by binding them to financial institutions via mortgages and loans (Forrest and Hirayama, 2015).

Governmental policy goals of Indigenous homeownership that are evident across the CANZUS ³ countries are largely based on the assumption of a causal relationship between home ownership, economic development, and reduced disadvantaged, but the evidence is not clear (Crabtree, 2014). It has been shown for example that individual titling of land amongst already marginalized and impoverished communities does not necessarily stimulate economic development, especially considering that the type of lending by banks which is considered to be the driving force of such development is typically more concerned with steady income streams rather than the availability of assets as collateral (Assies, 2009). Aragón and Kessler (2020) further demonstrate that although private property rights on-reserve offer some marginal economic benefits, they do not appear to lead to meaningful improvements in income or employment opportunities on collective First Nations lands. This indicates that individual titling policies will only be effective in supporting First Nations people in securing mortgages and loans if they are accompanied by comprehensive economic development strategies which enable the increased levels of income required for lending. The creation of a robust market economy can only go so far in creating the opportunities to obtain the material conditions for human well-being. This limitation is particularly pronounced when a market economy is built upon distributions of resources (i.e. ‘native spaces’) that are themselves the result of past injustices (Alexander and Peñalver, 2009). For the Tŝilhqot’in, as with other First Nations, instituting market-based property systems within the confines of the reserve space or even beyond is therefore problematic. This leads Egan and Place (2013) to conclude that fee simple may prove economically beneficial for urban reserves, but for remote and rural reserves a more useful approach to economic development would be extended Indigenous jurisdiction over ancestral territories and the revenues that accompany it.

The economic development fallacy of private property regimes perhaps belabors the issue for First Nations. Although Flanagan et al. (2010) in their oft cited book unabashedly claim within the same paragraph that property reform on reserve is needed in order to both create ‘Indian’ millionaires and improve housing, analyses of First Nations motivations and values is completely absent. Private property arguments for economic efficiency ignore the importance of connections to ancestral land of First Nations peoples, human–land relational ontologies, and the fact that collective ownership of land may offer important social, political, and ecological benefits of collective responsibility that override incentives based on economic growth (Altman, 2004; Egan and Place, 2013). As one interviewee explains:

So I think they were entirely dependent on their territory, and so that they did treat it to a certain degree as property. But I think that to stop there would kind of be an injustice because it was more. It's a relationship with their territory. And it's all the resources including the animals and the fish and the other creatures. And that goes right back to their creation stories that talk about their responsibilities to everything around them and to take care of it. So, you know, I think, to say it is analogous to property with a whole bunch of responsibilities to it. (Interviewee E)

Formalizing land relation rules

Whether formally or informally understood and enforced, property systems serve to clarify the allocation of rights and duties of people within a community with respect to the resources needed to survive and flourish (Alexander and Peñalver, 2009). Land tenure specifically, determines the type of interests that can be held in land, who can hold those interests, how they can be transferred, and the duties and responsibilities that come along with that interest (Baxter and Trebilcock, 2009; Hykin, 2016). As such, there appears to be utility in the creation of land relation rules ⁴ for First Nations as they seek to strengthen jurisdiction over their territory. My conversations with those within the Tŝilhqot’in National Government revealed an urgency from the perspective of land stewardship and land use planning for the clarification of land relation rules within Tŝilhqot’in territory:

So it's complicated because I don't think we've ever had that conversation with people. I think we had somebody go around looking for areas of how to like define where people's ownership is and trying to map out all of this and try to develop, start planning and developing a land use plan. So we've made motions to do that, but we haven't really sat everyone down to go what are the common rules around this and what laws are we going to derive around this? (Interviewee A)

Property economists and land titling programs following the Hernando De Soto (2000) school of thought have sought to commoditize and make marketable land relations through formalization initiatives. However, others argue that when approached from a rights-based perspective, formalization of tenure can be about securitization rather than marketability. Assies (2009), for example, argues that land tenure reform should be focused around improving tenure security and transferability within [First Nations] communities not to create economic certainty, but rather as a way to respond to the diverse development objectives of the community. This, according to Baxter and Trebilcock (2009), requires that the articulation of land relation rules takes informal institutions as a starting point and involves the creation of an effective dispute resolution mechanism. Another way of describing this is that rule articulation and land use planning serves as a ‘translation' of customary rights in support of the modern socio-economic, ecological, and cultural goals of First Nations. Customary property rights are those which originate in the historical property and economic practices of Individual First Nations, both pre- and post-colonial settlement (Dempsey et al., 2011). Building upon the customary can serve as a backstop against loss of land (Tehan, 2010), and there is evidence that the land relation rules most likely to succeed are those that bring with them traditional governance structures and that leverage Indigenous social capital (Wensing and Taylor, 2012).

The utilization of customary rights for obtaining housing funding and mortgages, as well as for leasing and utilizing as collateral for obtaining small bank loans is not without precedent. First Nations across Canada have been able to leverage customary rights for a variety of economic purposes, despite the fact that such rights are not recognized by the Canadian government or the courts (Flanagan et al., 2010). However, customary rights property systems are not without challenges, and they have become a source of concern for those calling for increased certainty as concerns land relations rules and their relationship with the common law. A challenge with customary land tenure is that without consensus, there is the potential for political influence in conflict resolution processes (Alcantara, 2007). Without remedies such as certificates of possession (COP’s), or more recently fee simple, the argument goes that the certainty required for First Nations members to participate in the broader economy will be stifled. Indeed, certificates of possession under the Indian Act have enabled extensive market integration in several First Nations communities. Nations such as West Bank First Nation near Kelowna are touted by some as the exemplary COP-induced economic success, with COP leases to non-members creating West Bank member COP holder millionaires, and providing a tax base for the Nation (Flanagan, 2019). However, some have questioned if such circumstances really benefit the Nation as whole as opposed to a few individuals (Personal communication, 8 February 2020), and there have been no qualitative studies to my knowledge investigating the ways in which the individual property rights system within West Bank has impacted non-COP holders, those resistant to settler-colonial institutions, and more broadly the state of cultural-ecological well-being of the Nation.

In many ways, customary property rights systems serve as a bulwark against colonially imposed systems of individual titling under the Indian Act, such as COPs. Another interviewee explained this dilemma of wanting to hold on to the customary while also clarifying rules:

I'm trying to respect the customary. Yeah, I mean, it's never been defined and even the boundaries not everyone would agree on like which rock it goes to or which stake it goes to. So there's still like a level of unknown I guess in where even their memory of the history is sometimes skewed so someone might remember something and someone might remember something else and they might have been both true at a certain time, but there is no good method of transactions. Or even for oral history, it's like everyone has to remember and everyone has to tell the truth. And so you have to have a lot of factors that happen to make sure that everyone remembers a certain time or agreement and the level of respect and honesty to kind of make sure that that is an understood agreement. (Interviewee A)

(Re) creating Indigenous property

It is clear that a certain type of formalization of land relation rules are needed to accommodate Aboriginal title now that it has been recognized and affirmed, and that such forms must allow for a certain level of stability such that they support the socio-economic and cultural-ecological goals of the Tŝilhqot’in. In particular, although there is a reticence to define title lands (or any land controlled by the Tŝilhqot’in) as property, there is a sentiment amongst members and leaders in the communities that people should indeed ‘own’ their homes. But articulating ownership in ways that do not betray Tŝilhqot’in values remains the challenge:

And when I mention that, one of the goals should be that relationships between community members, and leadership and community members is I think a really important value at the very center of whatever legal structures are built, is that the system isn't just cold you know, and I think you know I'm pretty confident that the Tŝilhqot’in they do carry those values of in terms of wanting to help those in need and caring about elders and young people and wanting systems that are compassionate so I'm not overly worried but it becomes a real question about what models exist and then whether those models meet the values of the Tŝilhqot’in. (Interviewee E).

Liberal 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 (Graben, 2014). Indigenous societies had complex and diverse property systems before colonial influence, many of which included inheritance mechanisms, trespass rules and sanctions, recovery of property rules, and exchange (Bobroff, 2001). Such systems included various forms of permanent or semi-permanent private rights in communally held land, which in some cases allowed for the accumulation of wealth (Blomley, 2014). Many of the First Nations of the Pacific Northwest maintained property systems structured around a framework of stewardship and ‘contingent proprietorship’ which ensured an efficient use of land and resources (Trosper, 2009). Private property tenures, however, in contrast to many traditional Indigenous property systems offer no such mechanisms for transferring land to more efficient users. This is problematic for First Nations who may not place a monetary exchange value to their land, but who do place high importance on the use of that land. This was a concern of one Tŝilhqot’in interviewee who shares their thoughts on ownership structures:

What is the purpose of having that land if they're not going to utilize what it's for? So there's no defined rules around that. I mean, really, it's like, I mean, some people, you know, they consider themselves having land, but they don't have any means or any desire to do haying for their animals or anything, they let somebody else do it. They'll take a bit of a cut or whatever, for somebody doing the hay for them, but it's a bizarre notion that somebody should have like, hay land and not, you know, they might not have horses or cattle or anything to sort of utilize it. (Interviewee A).

There is little doubt that settler-colonial conceptions of property and the values and social obligations that accompany them continue to influence the ways in which First Nations peoples now relate to the land and to one another (Nadasdy, 2002). It is worth recalling my experience at a First Nations housing forum workshop that was focused on the ‘true costs’ of housing, where the guest speaker was insistent that First Nations will never solve their housing issues if they continue to not evict their members who are delinquent on rent. Other governments, they claimed, do not provide housing subsidies and they do not have to shift budgets around to accommodate delinquent renters. In other jurisdictions, people must pay rent to live in a home, the speaker insisted. This hallmark of Western common-law – which understands landlord–tenant relationships strictly as market transactions reliant on a certain level of disinterest between the two parties – was touted as an exemplary principle that needed to be adopted by First Nations. The inability of any First Nations communities to evict their members and citizens was portrayed as a weakness or a flaw that holds First Nations back from improving their housing situations, and ultimately their economies. While understanding the true-costs of housing is important, equally important is that such costs are weighed against the benefits of a culture of care, solidarity, and reciprocity. Hence, the perceived inability of many First Nations to evict people from their homes can be understood as a choice to perform property in new ways. Rather than as an institutional failure, opting to not evict people can be an institutional strength representative of a certain social embeddedness, accountability, and ethics that is lacking in societies governed by the strict rules of private property and landlord-tenancy rules of the common-law. Indeed, Ezra Rosser argues that the close kinship ties between Navajo peoples lessen the effects of reservation poverty, ensuring that the haves always help the have nots, and that this mutual assistance is the most important tribal institution related to land (2005).

The Tŝilhqot’in, like other First Nations are now embedded in the broader economy and are pursuing a path of ‘economic sustainability’ to achieve their goals. To do so inevitably requires access to financing and loans for business investment and housing, often from non-Indigenous providers. To engage such providers, First Nations inevitably succumb to a type of governmentality, characterized by the adoption of common-law institutions of private property that will allow for the certainty that such providers desire (Woolford, 2002). However, the default to common-law structures perhaps speaks more to the influence of the settler-colonial structure on First Nations governance than it does to the lack of ‘other’ options. Through renewed powers of territorial self-governance and jurisdiction resulting from the Tŝilhqot’in title decision, there is now the opportunity to look beyond the common-law and its liberal institutions. After all, the courts have made clear that Aboriginal title emerges, at least in part, from inherent Indigenous law, which in many ways makes Aboriginal title stronger and more definitive than fee simple (Pasternak, 2015). Although in certain cases it can be infringed as like any other form of property including fee-simple, it cannot be expropriated and it cannot be taxed (Coates and Gibson, 2014). With the certainty of title on their side, the Tŝilhqot’in can now engage in the much-needed process of law articulation. And, as Borrows tells us, Indigenous laws can hold the space for diverse arrangements that could amount to a form of private property interest that would provide the type of certainty required by financial providers, if only we enable those laws to perform (Borrows, 2015a).

There are hopeful examples from other contexts. Today, The Puebla of Isleta tribe in New Mexico has a modern dispute resolution system for issues such as the inheritance of family homes, partitioning of lands, set-back restrictions on property, etc., all of which rely on traditional legal principles in decision making (Bobroff, 2001). Similarly, the Navajo have extensive property rights systems which recognize historic and ongoing customary use and which mediate conflicts through Navajo courts and legal institutions that are driven by egalitarian relationships and solidarity (Bobroff, 2001; Yazzie, 1994). Some of the ways in which other Indigenous communities across North America have been innovating with regard to financing include the Four Directions Development Corporation in the United States which has developed a means to foreclose on mortgages on Penobscot Tribal lands without alienating land to non-citizens by utilizing a group of trustees (tribal citizens and board members) to take title of the customer's real estate upon default (Carpenter and Riley, 2019). Such a model can include many variations where the collective takes responsibility for mortgage defaults, thereby ensuring land remains in the hands of the Nation (Stephenson, 2010). Another example includes a mutual housing association non-profit cooperative corporation model, where housing is financed through capital grants rather than mortgage debt, and where modest down payments and affordability standardized monthly charges are put into safe investments and returned to the residents with interest once they move out. This supports wealth creation while separating it from home ownership, and eliminates the need to take on debt and risk foreclosure (Stone, 2009).

The efforts of several of the Tŝilhqot’in communities including Xeni Gwet’in and Yuneŝit’in demonstrate potential pathways toward institutional innovations which build on the collective values of Tŝilhqot’in law, where iterations of the above models might be practiced:

I mean the location of housing that's important to the members ability to put housing where they want, like they've, in the past INAC has always wanted them in residential developments, tight residential developed neighborhoods and Xeni has resisted for a number of reasons. It just doesn't fit with the culture. So, having now the ability to put houses wherever they want is a good thing. The only problem is the cost of course. Typically, they put housing in clusters, family clusters, that seems to work best. And then those clusters are fed by energy networks, water networks septic fields with the water and the power seems to be little branches. (Interviewee C)

Conclusion

The legacy of settler-colonialism and its well rooted assimilative apparatus, now manifest most potently through neoliberal assumptions, has and continues to impose upon First Nations the priorities of individual property rights, competitive market-based development and economic growth (Dempsey et al., 2011; MacDonald, 2011). Isolated voices of resistance and calls for an institutional ‘other’ are inevitably drowned out by a dominant narrative which rationalizes First Nations compliance with the common-law and market-capitalism as a requirement of socio-economic amelioration and well-being within First Nations communities. This narrative continues to pressure First Nations operating under the Indian Act, the First Nations Land Management Act, modern treaties, and other agreements being negotiated under the auspices of ‘reconciliation’. Yet, the settler-colonial project has never fully succeeded in the sense that land and Indigenous people’s relationship to land remains inalienable (Brown, 2014). Collective interests continue to be valued, if not prioritized by First Nations, exercised through the practicing of social economies based on norms of trust and reciprocity (Kuokkanen, 2011; Panelli and Tipa, 2007). As such, as Todd (2016) reminds us, Indigenous voices – which are often marginalized through academic channels and dominant discourses – are perhaps at the forefront of the ontological turn of property.

In recognizing Tŝilhqot’in title, the Supreme Court of Canada affirmed the existence and relevance of a Tŝilhqot’in legal order which governs the relationship that Tŝilhqot’in people have with their lands, with each other, and with outsiders. The challenge now remains for the Tŝilhqot’in to reconcile these laws with Canadian legal practices in order to resolve the jurisdictional overlap and conflict created by the title decision and its subsequent agreements. Doing so requires an active awareness of and resistance against the type of governmentality that allows settler-colonial institutions to take hold and guide First Nations governments and individuals toward pathways amenable to the needs of capital. This paper has attempted to contribute to that awareness and resistance by highlighting the hegemony of liberal property and the British common law, by interrogating property’s assumptions and logics, and by demonstrating how the Tŝilhqot’in and First Nations people more broadly can perform property differently. In doing so, we have suggested that the formalization of customary structures, practices, and land relation rules is needed not to unlock the ‘capital’ hidden within property, but rather to create the stability needed for the advancement of diverse socio-economic, cultural and ecological goals. For the Tŝilhqot’in and other First Nations, extricating themselves from the institutional framework of settler-colonialism is not only integral to the process of decolonization, self-determination, and cultural survival, but also a strategic move as they seek to resolve issues of housing, socio-economic disparity, and overall individual and community well-being.

As a conclusion, we should be reminded that property is not a thing but a series of responsibilities and obligations to one another which structure the social-environmental contract. Even common law property systems once interrogated deeply, are understood to involve interdependence and obligations (Mansfield, 2009). Orthodox property theory has neglected this aspect of property, prioritizing instead the primacy of individual rights and wealth accumulation, manipulating the power of property to serve as a shield against humanity’s social welfare requirements. In building an institutional framework based on social embeddedness, care, and reciprocity between people and land, the Tŝilhqot’in can not only fulfill the promise of Indigenous cultural-ecological resilience and resurgence, but can also perhaps demonstrate to an increasingly atomized settler-colonial society, different and valuable ways of performing property.