Introduction i Access to ProPerty Rights: Integrating Indigenous communities into the Federal scheme – International Experiences edIted by: célIne Auclair And Nawel HamIdI Published by All rights reserved by the Forum of Federations. without limiting the rights normally reserved under copyright, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of the publisher of this book. Access to ProPerty rights: Integrating Indigenous communities into the Federal scheme – International Experiences edIted by: célIne Auclair And Nawel HamIdI ISBN 978-0-9809150-5-1 september 15, 2010 A publication of The Forum of Federations 700 – 325 dalhousie street ottawa, on K1n 7g2 canada tel.: (613) 244-3360 Fax: (613) 244-3372 [email protected] www.forumfed.org with support from the First Nations tax commission 321-345 yellowhead highway Kamloops, BC V2h 1h1 canada Table of conTenTs AcKnowledgements ..................................................................................v FOREWORD.......................................................................................................vii IntroductIon ...............................................................................................1 dedIcAtIon .....................................................................................................9 chapter I – The role of land title systems in reducing transaction costs on First nations lands – André le dressay and graham mathews ............................11 chapter II – The capitalization of Indigenous communities’ land rights in Peru and latin America: main Institutional obstacles and Proposed reforms – maria del carmen delgado .................................................32 chapter III – Land tenure systems for traditional communities in south Africa – nicholas olivier .......................................67 chapter IV – Land tenure, Judicial sovereignty, and economic development on American Indian reservations – dominic Parker and terry Anderson ................................101 chapter V – Indigenous land title systems: land tenure in Australia – maureen tehan ...........................................115 BiographIes .............................................................................................147 vii acknowledgments This publication is the culmination of many hours of discussions, meetings, readings and writings. my very first acknowledgement goes to the Forum of Federations and the First nations tax commission for their steadfast commit- ment to this endeavour. I would also like to thank those who, together with the international experts, actively participated in the working sessions that were held in 2007–2009 and who were key persons to this endeavour during and after the preparation of these sessions. Thus, in addition to the authors of the chapters, I would like to thank John mcKennirey, stuart (bud) smith, sakej (youngblood) hender- son, diane cragg, gregory richard, tom Flanagan, wayne haimila, Ann shaw, sarah smith, Ken scopick and brent moreau. without their commitment and dedication the international working sessions and this publication would not have been possible. A special thank you goes to my co-editor, ms. nawel hamidi, who has coor- dinated this project. nawel has invested considerable time and effort to ensure the success of the international sessions and the quality of this publication. we have also been able to count on the unfailing support of david Parks and ra- chida chaillie who contributed significantly to the quality of this program, and whom I also thank. Finally, I wish to express my sincere gratitude to clarence (manny) Jules and hernando de soto. during this process they have been a constant source of inspiration as they continue to be. our hope is that their efforts at empowering indigenous leaders and brightening the economic situation of indigenous peoples can reach as many indigenous communities as possible. céline Auclair viii Access to Property rights ix foreword The exclusion of Indigenous peoples from the market economy in both the de- veloped and developing world has deep historical roots. This exclusion is, in large part, due to the fact that clear ownership of their land and other assets has been denied. This absence of right of ownership not only limits the prosperity, and freedom of these groups, but it also removes one of the most powerful in- struments any government has to fully exercise its self-determination. Throughout the world, this contemporary isolation constrains dispossessed peoples to enter into the sphere of extra legality. more than two thirds of the world population is not protected by standard legal norms and regulations, and is subsequently excluded from enjoying full participation in the national and global economy. In 12 latin American countries, more than 76% of the rural properties and 65% of the houses are affected by some degree of extra legality. As land is one of the most important resources that any government pos- sesses, absence of inclusive legal property systems creates legal uncertainty, political instability and mistrust and can lead to the rise of national conflicts. This is even truer in the case of Indigenous peoples for whom the land is not only one of the most vital aspects of Indigenous culture and cosmogony, but constitutes the last anchor for a minimal protection of their whole identity. In canada, statistical inference suggests that the private investment rate on First nations lands is between four to six times lower than that in the rest of the country, due in large part to ineffective land tenure regimes. recently, some First nations leaders and the federal government have initiated research pro- cesses to look at ways First nation could be better integrated into the market economy. together, they have been able to unite their common aspiration to concretely empower Indigenous peoples. hopefully, these initiatives will allow First nations to take advantage of the market economy and, more importantly, to clearly define First nations’ property ownership. In Peru, regularizing the land titles in urban communities reduced the time and cost associated by 98 per cent. Access to capital improved significantly re- sulting in a 280 per cent increase of loans. land title allowed the integration of land title systems with many other systems, thus improving the ability of people to use government services. It is urgent that governments work in partnership with Indigenous peoples to find solutions and ensure their effective integration into the global economy. concurrently, it appears imperative that significant transformation occurs in order to bring these historically marginalized groups into federal frameworks. This will help to ensure that Indigenous peoples are able to truly govern their lands and contribute to the local, national and global economy. It is our hope that other countries will follow these steps. clarence t. (manny) Jules Hernando de soto chief commissioner President First nations tax commission Institute for liberty and democracy Introduction The great majority of Indigenous peoples in the world suffer from the most de- spicable living conditions and most of them have lost faith in what economic programs can bring to their peoples. For a long time, the academic orthodoxy has presented a multi-factorial explanation for this, focusing on the lack of leadership, the lack of education and the lack of entrepreneurship. some au- thors have invoked the incompatibility between the Indigenous peoples’ cul- tures and the market based economy. today, there is not much evidence to support these assumptions. If these factors have had an impact in the past, experience demonstrates that First na- tions’ lands can generate economic activities similar to the activity produced on neighbouring non-First nations lands. If so, why is the reality so different? what if the key to understanding the causality chain was hidden within some of the most basic principles of the economic cycle? In canada, studies1 and recent empirical experiences2 demonstrate that if actual market conditions in the neighboring jurisdictions were also applied on 1. Fiscal realities, “The role of land title in developing First nations economies and governments”, (2007) ; Fiscal realities, “The economic and Fiscal Impacts of market reforms and land titling for First nations”, (2007); Fiscal realities, “making markets work on First nation lands : The role of the land title system in reducing transaction costs”, (2009) ; diane cragg, “best Practices in First nations land title systems: considerations for Improving land title certainty on First nations lands”, (2007); lang michener LLP, “best Practices in First nations’ land Administration systems”, (2007); lang michener LLP, “A constitutional Analysis of the First nations land title recognition Act”, (2009); lang michener LLP, “The british columbia land title legislative Framework as a template for the First nations land title recognition Act”, (2009). 2. These empirical experiences compared actual experiences with successful developments on First nations sites versus similar projects in adjacent non-First 2 Access to Property rights First nations lands, the property value, and the economic growth which would result from it, could generate similar economic activity. so far, the vast majority of First nations in canada