Property Rights / Property Wrongs: Micro-Treaties with the Earth
Rethinking our responsibilities towards nature through land stewardship
Living Law on a Living Earth — Foreword by John Borrows
We need to reinvigorate relationships with the earth.
When I grew up on the farm I learned how we were dependent on the natural world. Soil, seeds, snowpack, rain, heat, insects, birds, and a hundred other relationships influenced how plants grew, animals prospered, and we lived.
These same lessons were reinforced by my grandmothers and grandfathers experiences and teachings from the reserve. As with other Indigenous systems, Anishinaabe knowledge flowed through the generations to help us live well. They taught us that fish, deer, frogs, otter, turtles, rabbits, and plant-based medicines, food, and human health are all intertwined in an intricate life-sustaining web.
My experience on the farm and reserve helped me see that our own hard work is key to ensuring our attentiveness and encouragement of these relationships. We have an active role to play in facilitating healthy environments.
The information in the following piece helps us see the work which lies ahead.
The deep codes which are necessary to sustain life are still embedded in the earth. We are capable of braiding them into our contemporary lives. Our legal relationships can accommodate the changes we need to make to life ecologically rich and diverse.
Yet we must act now. The earth is suffering from our neglect and abuse. Our own suffering as humans is related to the failure to live by what our ancestors learned in many parts of the world. We cannot act as if we are separate from the natural world.
John Borrows
Canada Research Chair in Indigenous Law
University of Victoria Law School
We are living under
self-terminating paradigms
The multiple crises of our times — especially the global climate and housing crises — speak to a deeper problem: our broken relationship to land.
Today, Indigenous and non-Indigenous people alike, live under self-terminating paradigms. Indigenous people have been systemically marginalized; suffering under colonialism and the Indian Act. Both Indigenous and non-Indigenous people are robbed of good health and wellbeing; dying under ecocide and increasingly unequal socio-economic systems.
According to many, Covid-19 is just the tip of the iceberg. As habitat and biodiversity loss increase globally, the coronavirus outbreak may be just the beginning of mass pandemics and just one of the consequences of the destruction of our only nature, ourselves.
We need to re-imagine our laws and governance systems, to transform our systemic and spiritual relationships with land and nature. And we need each other to get there.
Building on multiple workshops and conversations with Indigenous leaders across Canada in the past year, this piece explores how to rethink property rights (and responsibilities) and environmental protection at the intersection of civic and Indigenous futures.
“Reconciliation between Aboriginal and non-Aboriginal Canadians, from an Aboriginal perspective, also requires reconciliation with the natural world. If human beings resolve problems between themselves but continue to destroy the natural world, then reconciliation remains incomplete.”
― Honouring the Truth, Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada, 2015
All law is storied — Relationship between Lifeworld and law
The tools we use to relate to — and sometimes own — the world around us tell a story. Across cultures and time, various legal traditions framed the relationship between humans and the world — addressing land, business, objects and other aspects of human life. Beneath these laws, we find an implicit worldview about what it means to be human and what is the nature of our relationship to the world.
Laws, legal traditions and the constitution are not the original source of truth, they are not God-like. As John Borrows writes in Law’s Indigenous Ethics, “we should not overlook law’s “in the beginning” inquiries. When we identify law’s source we can learn more about in whose image it was created. Origins matter.”
Law tells the story of a life-world.
We must acknowledge and make explicit the different stories, lifeworlds and constitutional orders underpinning Western and Indigenous perspectives.
However, the dialogue between Indigenous resurgence and de-centred Western perspectives must acknowledge the presence of deeply contrasting lifeworlds and will therefore remain an ongoing and open dialogue. We can law, as a verb, different stories together.
Just like the Two Row Wampum Treaty of the Haudenosaunee, we need to respect each other’s ways and not interfere nor force reconciliation, but hold space for the emergence of common civic and Indigenous futures.
Scoping the status quo: When it comes to land, what is the world beneath Western law?
Western legal systems such as Common Law and Civil Law are rooted in liberalism. Enlightenment thinkers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau laid out the philosophical foundations of the liberal worldview where liberty, consent and equality before the law are paramount.
Western legal systems sit on an assemblage of fundamental concepts that inform a specific relationship to land:
- If you are not right-bearing, you are owned.
- Ownership is expressed through (written) contracts between sovereign and autonomous humans.
- Earth is the “background against which humans live out history.” (Mills, 2016)
Passive land — Western default and nature
By framing extractive practices such as mining, fracking and pollution, the current body of environmental laws are not actually made to protect nature, they are made to regulate the use and abuse of nature by humans.
Land is ripe for exploitation and extraction at worst or in need of protection, at best.
Land is understood as passive, silent or fragile.
Abstract land — Western default and property
Both Common Law and Civil Law frame ownership as a bundle of rights. Ownership of land happens and is transferred between persons. It is a person-person contract.
Land is understood as abstract and de-physicalized.
Land, a story of colonialism
Private property, as a legal and contractual mechanism, was — and still is — a throbbing force of colonialism. The colonial power of private property acts as a dispositive of dispossession, but also as a mechanism to erase existing Indigenous legal and political systems surrounding the relationship to land and contractual protocols.
The deep architecture of our systems crystallizes power dynamics. Uprooting colonialism from the fabric of our systems means, among other things, restoring the voice of land in our legal and contractual mechanisms.
Acknowledging that land/ nature speaks, destabilizes the primacy of the self, a central concept of Western liberal thinking. In other words, it questions the foundational premises of the world beneath Common and Civil Law.
Would liberal constitutional systems even survive a relationship with nature?
We don’t know. But at this point in History, we have no choice but to find out.
As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, enclose it from the common. […] Thus, in the beginning, all the world was America, and more so than that is now; for no such thing as money was anywhere known.
― John Locke, Two Treatises of Government, 1689
“The great aim of the Government should be to give each Indian his individual property as soon as possible.”
― Lettre du lieutenant-gouverneur et intendant des affaires indiennes, 11 novembre 1878,
De-centering Western Default / Cleaning our own house
Western legal systems already have, instilled in them, pathways towards a dynamic relationship to land.
Following these pathways might lead us to a place where Western and Indigenous legal worlds can enter in a productive dialogue.
Legal pluralism
Western liberal legal orders have a capacity for legal pluralism. The interaction of Civil Law (Quebec) and Common Law (Rest of Canada) being one obvious example. However, the extent to which Settler Law can interact with Indigenous Legal Orders, particularly on the topic of the relationship to land, should be approached with great caution.
Legal incommensurability
Western liberal legal orders have a capacity for genuine legal pluralism with systems that share a basic constitutional framework. However, there is a very real possibility of legal incommensurability (i.e. incompatibility) between Settler Law and the various Indigenous Legal Orders since they emerge from drastically different constitutional families and, ultimately, worldviews.
By engaging in the act of de-centering western legal perspectives and exploring new forms of relationship to land they might contain, we must release expectations of what the dialogue between Indigenous Legal Orders and a “de-centered” western legal framework might end up looking like.
In other words, the intersection of civic and Indigenous futures might not be a self-contained enquiry but rather an ever unfolding enigma.
A different relationship to nature
Rights of Nature is one emerging approach within Western Law that aims at changing our relationship with nature.
It consists of extending legal personhood to nature. By giving nature standing and active legal agency, the Rights of Nature approach is an ecocentric model of law that significantly increases the presence of land in our legal world. In that regard, it represents a tangible advancement in an attempt to de-center western default legal perspectives on land.
However, nature remains wrapped-up in a discourse of rights. It springs from the notion that we can choose to enter in a legal contract with nature. As such, the Western default lifeworld is alive and well.
This approach also highlights the artificiality of human’s cadastral approach to land. Boundaries of ecosystems are elusive and slippery: Where does the river, who is granted legal personhood, start or end?
Since those rights still have to be stewarded by humans, one could wonder if it will have an effect on the rate of death of environmental defenders who are killed trying to protect their land — 160 were killed in 2018 — a reality that is only one visible consequence of the abusive actions of land defenders around the world: criminalization, harassment, etc.
Rights of Nature have only been granted to large ensembles so far. What if we took a micro-massive approach to implementing Rights of Nature?
A different relationship to property
Community Land Trusts are an alternative approach to property. The legal entity consists of a non-profit organization that holds land in perpetual trust for the permanent use of a community.
Some observations:
- Within a CLT, land is actually present. It is a person-person-place contract. In this, we find the seeds of a multi-actors contracting mechanism.
- Beyond rights, a responsibility towards the perpetual affordability or preservation of the land is introduced.
- Land is present in the contract and humans have a stewardship responsibility towards it.
- Land is still understood as something that can be owned through written contracts.
Keeping those observations in mind…
What if we made land even more present? Would our contractual mechanism of ownership even survive?
What if we incorporated responsibilities towards — among other things — the other species on the land?
What is property, anyways? — Beyond the fiction of absolute property
Property rights are not absolute
In Canada, property rights are under provincial jurisdiction. They were deliberately excluded from the Canadian Charter of Rights and Freedoms (Part I of the Constitution act, 1982), i.e. they have no Constitutional protection.
Most importantly, despite wide-spread cultural narratives and fictions, property rights are not absolute.They co-exist and are constrained and limited by their interactions with other laws and mechanisms.
In other words, property is not just a bundle of rights, it already is, in practice, a bundle of responsibilities: at the municipal, provincial, federal, constitutional, international and Indigenous levels.
What does Aboriginal Title mean for private property?
What is an Aboriginal Title?
- A (constitutional) Common Law doctrine.
- Section 35 of the Constitution Act of 1982 recognizes and affirms Aboriginal rights. It does not, however, define or create Aboriginal rights.
- Sui generis : An inherent right which flows from historic and ongoing political, social, and legal systems that sustain a relationship with ancestral lands (prior to colonization).
- It is “recognized” and not “granted” (i.e. neither defined by, nor a construct of, the colonial legal system)
- A string of case law (see Calder, Delgamuukw-Gisdayway, Campbell, Haida, Mikesew Cree or Tsilhqot’in) has been produced to interpret the nature and extent of these rights.
- It is the antithesis of the Indian Act
What recent case law can tell us about private property
Tsilhqot’in Nation v. British Columbia (2014) secured a declaration of “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, supra, note 2, at para. 73.)
Section 35’s growing body of case law around the recognition and definition of Aboriginal title (a constitutionally protected right) is progressing toward a pivotal point where Aboriginal title could very well intersect with private property rights, and become a limitation on the latter.
The question then could become…
“Will Aboriginal title oust privately held beneficial interests in land, or will privately owned land prevent declarations of Aboriginal title over such lands?”
- John Borrows, 2015
As such, Aboriginal Title is an “empty shell”. Through Section 35, Indigenous legal orders provide meaning and content to Aboriginal title.
There are well over a hundred different Indigenous legal orders in Canada who have and will have something to say about “private property” and human’s relationship to land.
Increased recognition of Aborginial Titles in Canada, paired with the resurgence of Indigenous Legal Orders, could very well transform these “empty shells” into legal wormholes.
- Because Canadian Aboriginal case law will sooner or later lead us there
- Because the dominant Western legal system creates and enables a self-terminating paradigm….
- And most of all, because we have a responsibility towards reparation and reconciliation…
We need to renew our (legal) relationship to land
Grounding proofs of possibilities
As part of this initiative, Civic-Indigenous 7.0 emerged as a foundational layer in which to ground the design of socio-economic and ecological initiatives, and the financial and regulatory mechanisms around them.
In the following pages, we explore how the Seven points of convergence: A compass for making kin, can serve as anchor points for the development of Nouveaux voisins (New Neighbours), an initiative aiming at the reconciliation with nature in our yards, towards a new form of micro-treaty that goes beyond our current ideas of ownership.
As we try to weave various past, present and future visions of the world together through this proof of possibility, we are conscious that some tensions and even dissonance might be felt in between more technocratic and relational approaches.
If you have any insight on how to address these tensions or on how these seven points of convergence could serve as a tool for the development of another initiative, please let us know!
Nouveaux voisins: Reconciliation with nature
starts in our yards
Nouveaux voisins is currently working with a growing ecosystem of partners to regenerate green lawns to ‘make room’ for more biodiversity, mitigate some of the effects of climate change, and help rethink our problematic relationship with nature across municipal divisions (city <> suburbs <> country).
So far, Nouveaux voisins and other partners have been working on three different levels: the creation of discourses (extending the notion of neighbourhood to other living beings and interrogating the stigmatization of manicured lawns as the default landscaping option), the development of alternative landscaping approaches through pilot projects, and lastly, the production of tools to support this socio-ecological transformation (web platform and toolkit, regulatory sandboxes, financial and fiscal mechanisms to account for the additional ecological services that would be created collectively, etc.).
The quest for the perfectly manicured green lawn — a deeply ingrained cultural norm and the largest irrigated crop in North America — has many negative effects on our environment. The potential impact of this socio-ecological transition is therefore immense.
It also moves us from a vision of nature as managed by humans (horizon 1), from a nature that is recognized for its ecosystem benefits to humans (horizon 2), to finally acknowledge nature as self-sovereign, with metabolic exchanges between species (including humans).
Counselling with nature: Towards 1 million connected yards
So far, Rights of nature has been mainly implemented on a specific site (lake, river, etc. + with a specific community) or at the state level (Bolivia + Ecuador + Uganda) sometimes without much impact on the ground. A similar observation can be made on ecological conservation efforts.
Starting with more informal cumulative small scale actions, initiatives such as Nouveaux voisins could be deployed as a collective bottom-up Rights of nature/ ecological restoration movement.
If only a few owners participate, the impact would be very limited. However, if millions of people across Canada decide to embark in this transition and with the appropriate infrastructure and tools to support it, it could become a way to better counsel with nature.
For instance, instruments could be developed to better support collective decision-making about the kind of species that should be supported in priority given their extinction rate, or the kind of ecological services to support in a given area, all that by the choice we make and incentivize together in our yards.
Collectively redefining beauty to value function
Today, hiring a professional to transform your yard is too expensive for most people (e.g. in one of the pilot projects of Nouveaux voisins, the regeneration of 40 square meters of lawn in Outremont (Mtl) cost approximately $4000). On the other hand, simply leaving the lawn to grow and regenerate without any human intervention, can also bring certain challenges, such as allergy risks or the years it takes to re-wild up to a point that is considered beautiful and acceptable for today’s cultural standards.
To de-lawn/ re-wild at scale, we might need a new generation of civic financial models and instruments that have the potential to account for multi-dimensional and longitudinal forms of value (carbon sequestration, biodiversity increase, reduction of heat island effects, etc.) and leverage the institutional and private capital needed to solve the social-environmental challenges around re-wilding.
It will require a better understanding of various forms of benefits in a single yard (biodiversity increase, carbon sequestration, public health, quality of life, community participation and food security, among others), as well as more information on the differentiated values created at different scales (a single yard VS a street VS a neighbourhood VS a region).
As the Mohawk phrase “Akwe Nia’Tetewá:neren” (all my relations) expresses, Indigenous worldviews often have a philosophy of interconnectedness and belonging, an understanding that we are all related to each other and to all life on Earth. How can we demonstrate that respect for our all living things at home? How can we connect the scientific understanding of ecological systems that we have built over the past few hundred years, with the Indigenous wisdom that was developed during thousands of years of intimate relationship with this specific territory on which we stand today?
Weaving responsibilities towards nature in existing legal orders
Based on our research and conversations with various stakeholders, it appears that municipal and provincial layers of regulations might be the most appropriate entry points to better recognize our responsibilities towards nature on any given piece of private land.
At the municipal level: Rather than reinforcing the maintenance of manicured lawns (e.g. a maximum of centimetres for the vegetation cover), municipalities could decide on a percentage minimum (e.g. 50%) of the surface of your yard that has to be dedicated to a series of ecological services and develop the tools to support communities in achieving that objective.
At the provincial level: Existing heritage laws appear to be a good entry point, either by recognizing rights of nature as part of conservation easements (as it was done with the Community Legal Environmental Defence Fund), or with voluntary legal conservation options, as promoted by the Government of Quebec (e.g. réserve naturelle, la servitude de conservation, le don ou la vente de propriété, ainsi que la désignation d’un habitat floristique).
These last options already come with income or municipal tax reductions in some cases, but generally they apply only to large pieces of land. A more democratized and collective approach to conservation and restoration is needed.
Indigenous laws: While Indigenous wisdom can be integrated within other legal orders and consequently prepare the terrain for a recognition of a plurality of legal orders further down the road, it was recommended to “clean our house” first, in the short term, before starting to engage directly with the legal order as non-Indigenous people.
However, one Indigenous man told us that when a bureaucrat from the City of Montreal came to his house with a ruler to measure the length of his lawn following a complaint by a neighbour, he evoked the Indigenous law from his people and what it said the relationship to the land, which the bureaucrat acknowledged. He left his property immediately. This anecdote embodies legal plurality and how the negotiation between Indigenous and settlers legal traditions might manifest through micro-decisions on the ground.
Next step: To gain more clarity on how to best weave responsibilities towards nature as part of existing legal orders, a conversation with representatives from many levels of jurisdictions would be required.
Working towards the reconciliation of our regulations
Regulation is one of the most important roles of government — it is the codified relationship between market, state, civil society, and nature, ensuring adequate protections and terrains of action for each. As we find ourselves at the intersection of unprecedented challenges and opportunities, including climate change and ecological destruction, we must realize that the game is changing and that rules need to change as well, including on the property we own or lease.
Here are a few ideas on how this might play out.
Property as a (micro) treaty — Moving beyond ownership
Can we think of property as entering into a treaty with a place, rather than owning it?
At the edges of Western legal thinking, can we consider ownership as a practice of treaty-making rather than an act of private possession? Can we prototype a digital micro-treaty (a smart treaty) that would interact in real time with all its relations and responsibilities, including the existing limitations on private property under Settler Law?
This could make owning your home and caring for its land an act of deep reconciliation or, at the very least, “prepare” our current notion of private property to enter in dialogue with Indigenous legal orders, through Aboriginal Title. While this does not guarantee a frictionless process of integrating Aboriginal Title and private property rights, it might open up the interface… or our imagination.
Pathways beyond ownership remain elusive. But specific elements of wonders, triggered through a preliminary contact with Indigenous legal thinking might help to defamiliarize ourselves from “business as usual” and engage further in the task of de-centering western default thinking. Here are a few elements of wonder for further consideration:
“Part of our challenge as peoples in cities is to learn how to live with the strength of the earth and draw this in a counselling fashion. Go talk to the trees and talk to the plants and understand the language, understand the stories, understand the science, understand the treaties of nature. And because it’s living, it also means that it is not contained to a once upon a time in 1701. It means what is happening today and what can happen off in the future. With Section 35 being part of Canadian Law, this is a way to help us start to make law not just in parliaments or legislatures or courts, but seeing law as being us. And lawing together. It’s not just lawyers and judges who practice law. We can all practice law. And we can do that by reconnecting people to their places. This is us. We don’t have to wait for it. It’s there. It’s around us.”
― John Borrows, excerpts from his teaching by the pond, Toronto, 2019
Get in touch
We are still at the very early stages of development for Civic-Indigenous 7.0, so we would welcome any feedback to inform the work moving forward. We are also looking for fellow travellers, so please get in touch if you’d like to contribute.
Jayne Engle — Dark Matter Labs: jayne@darkmatterlabs.org
Jonathan Lapalme — Dark Matter Labs:
jonathan@darkmatterlabs.org
A PDF version of this piece is also available. Please contact us if you’d like a copy.
Acknowledgments
This piece was co-written by Marie-Sophie Banville and Jonathan Lapalme from Dark Matter Labs, both based in Tiohtià:ke/Montréal, and in collaboration with Cities for people / The McConnell Foundation, the Canada Research Chair in Indigenous Law of University of Victoria Law School, the Center for First Nations Governance and Nouveaux voisins. The visuals were created by Hyojeong Lee from Dark Matter Labs as well as the team behind Nouveaux voisins.
We would also like to thank many others collaborators who joined us in the Civic-Indigenous 7.0 workshops and the conversations that led up to this piece, including individuals from: Waterloo Institute for Social Innovation and Resilience (WISIR), MaRS Discovery District, Evergreen / Future Cities Canada, Mi’kmaw Native Friendship Centre (Halifax), Centre for Indigenous Innovation and Technology / Troon, Federation of Canadian Municipalities (First Nation-Municipal Community Ec Dev Initiative, CEDI), Cando (CEDI), Center for Democratic and Environmental Rights, Community Environmental Legal Defense Fund (CELDF), Centre québécois du droit de l’environnement (CQDE), David Suzuki Foundation, and many others.
References
