Public Policy Sources #38:
Individual Empowerment

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Are treaties properly seen as settlements with Indian collectivities or with Indian people—individuals who make up collectivities? This is an immensely important question.

Should all of the fruits of settlement in terms of cash, land, and ongoing financial support accrue to the collectivity and to the control of the elite managers? Or should some portion, large or small, accrue to individuals?

Should the majority of a collectivity be allowed to make a choice about the system for all individuals, or should individuals affected by a treaty settlement have the choice of saying in effect, "I will take my share and get on with my individual life." My view is that individuals should have that latter option.

There is no proposal that will be so strenuously resisted as this one, for it has the potential to dramatically undermine the power of Indian elites and the Indian Industry. The standard defensive argument of the industry is that such a concept will lead to "cultural genocide" (respect for accurate or moderate language is often missing in these debates) by undermining the collectivity. This is nonsense.

Cultures survive according to their usefulness to individuals. They have no merit or entitlement to support beyond that. By analogy, would anyone seriously argue that the government of Canada should control most of the spending in the country so that Canadian culture could be protected, rather than leaving most choice in the hands of individuals? Of course not.

Private property and individual choice are the very bedrock of Canadian society, and indeed, of freedom itself. Certainly any individual has the right to make him or herself "not free" by ceding their property and decisionmaking to others, but do we have the right to impose that on anyone? In structuring treaty benefits to accrue strictly to the collectivity, we do exactly that.

Some will point to the Delgamuukw decision, wherein the Supreme Court opined that aboriginal title is a collective right. They will say that the court leaves us no choice on collective ownership. They forget or ignore the fact that one function of treaties is to replace Delgamuukw with a negotiated solution. That solution can contain whatever distribution of property rights the parties may agree upon.

Negotiators for Canada and British Columbia should maintain a policy of structuring treaties to allow individual members of the tribe concerned some major element of choice in terms of how he or she may choose to take the fruits of the settlement.

Quite apart from notions of private property and choice, this system is also the only one that begins to be fair to urban or "off-lands" Indians. Under the present system, almost all benefits accrue only to those who choose to reside on the tribal lands. Many people may not wish to do so for whatever reason, including access to employment and urban amenities. An individual entitlement by choice allows such a person access to at least some portion of their notional share of the overall settlement.

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Last Modified: Thursday, August 5, 1999.