Purpose and Outcomes
- Identifying specific rights and responsibilities over housing and lands that can be redistributed differently than standard rental or ownership models
- Being able to construct a community-developed model of formal land and property relationships that feels intuitive and culturally legitimate
- Providing First Nations policy-makers with a tool to brainstorm and explore less common options for property relations in their communities
- Offering First Nations community residents an exercise to help them better understand their role in relation to a home and lands; what they can do, as well as what they should do.
This is one module within a broader toolkit intended to facilitate the goals and projects of First Nations communities related to housing and homelands governance. Each module can be used individually, in connection with other supporting modules, or in conjunction with the toolkit as a whole-system approach.
This exercise is designed to guide First Nations groups and individuals through the work of understanding various rights and responsibilities regarding housing and the surrounding lands. While the ideas of renting and owning are well-used, the general usage of these terms can lead to the false assumption that there are only two options and that each is clearly self-contained. It is more accurate to understand terms like ‘renting’ and ‘owning’ as packages in which different rights and responsibilities can be included.
While the packages of ‘renting’ and ‘owning’ may have a standard configuration, variations on the standard are not unusual. This exercise seeks to emphasize that with rights come responsibilities, and so full autonomy and ownership may not be the goal for all residents or communities. This module is meant to unpack these packages and the rights and responsibilities associated with them, in order to offer other possibilities for legal relations to land and housing.
Rights in relation to land can be separated into five general categories:
- Possession – The right to occupy the land
- Control – The right to set the agenda for use of the property
- Exclusion – The right to determine access to the land
- Enjoyment – The right to use the land within the bounds of law
- Disposition – The right to transfer rights
With these in mind, we can begin to see something like ‘renting’ or ‘owning’ a home as a convenient term for a subset of the above rights. For example, if you are renting an apartment, you have a relatively full right to occupy and live there, and you generally get to determine who can come in and when. In the case of renting, there is usually a requirement to allow the landlord access with sufficient notice, so the right to exclude is more limited than it would be for ownership. The same could be said for control; a renter has the right to furnish and make minor adjustments to the apartment, but the landlord might take issue if you decide to knock down a whole wall. Disposition is similarly limited since a renter’s ability to sell or transfer the right to occupy the apartment is limited, usually as set out in a lease agreement.
In contrast, owning a home generally includes a more comprehensive set of rights, though even this has limits. Building additions to a home, for instance, usually still requires permission from the local authority and generally the use of the land is restricted to residential purposes through zoning laws, such that even an owner couldn’t decide to turn their yard into a mining operation.
[Download the worksheet]
A. Brainstorm what you want to be able to do
Begin by brainstorming a list of all the types of things you might want to do with your home and the land around it. These might include things like building a small shed, painting and decorating the interior, having a party, or planting a garden. This could even include something as simple as determining when someone is allowed to come onto the land or into the home. This list will represent some of the things you’d like the right to do. Feel free to use the Worksheet appendix if it is helpful.
B. Brainstorm what needs to be done
Then create a second list of all the types of things that should be done regarding your home and the surrounding lands. These tend to include general maintenance and repair activities, such as ensuring the roof keeps out the weather, checking the plumbing for leaks, keeping an eye out for fire hazards, tending the surrounding lands, etc. It can also include everyday chores such as sweeping, dusting, wiping down surfaces, clearing pathways, etc. This list will represent some of the responsibilities related to home and lands.
C. Decide who should look after what responsibilities
Next, make three columns, one each labeled: resident, local community, and government. Then place each of the ideas brought up previously from the responsibilities list under one of the headings based on who should, in your opinion, ideally be responsible for that activity. For example, the resident might be responsible for generally keeping the interior of the home clean, while the local community could be collectively responsible for tending a shared garden space, and the government could be responsible for performing regular checks on building integrity and safety. If there is an idea that seems to fit in more than one category, feel free to place it between two options or even above if you think it should be relevant to all three.
Consider whether breaking up an idea into more specific rights and responsibilities might allow more clarity regarding where each would be best placed. You might consider renovations as a general concept, but then realize that while having a right to make changes and renovate a house is one part of that, so is the liability of the project if something goes wrong. It may be desirable to limit one’s choices as to how far renovations can go to also ensure you limit your liability to being responsible for damages.
D. Find existing relationships between responsibilities and rights
Lastly, go back to the list of rights (things you want to be able to do as a resident) and compare each one to the list of responsibilities. Ask yourself if any of the rights require taking on certain responsibilities. For instance, the right to have a garden likely means that the resident should be the one to look after and tend it. Similarly, the right to make significant changes to the interior likely entails assuming significant responsibilities in maintenance and repair. If you want to be able to install a new dishwasher, you will likely also need to be responsible for purchasing it, installing it such that it doesn’t leak, and taking care of any damages if it does. On the other hand, if you’re willing to go with a certain set of pre-installed appliances, then the upkeep and maintenance of them might be looked after collectively by a community-run service responsible for maintenance.
E. Review responsibility assignments in light of right and responsibility co-relations
With an understanding of what rights and what responsibilities might need to go hand-in-hand, check the three columns you made earlier, and ask if there are any rights in the resident column that you’d rather give up so as not to have to look after the associated responsibilities. Similarly, are there any responsibilities you’d be willing to take on to have the extra freedom that the related rights might entail?
If you were to continue to fill in these three groups with all the activities residents may want to do and all the responsibilities that need to be looked after in relation to the structures and the land, what would result is a concept map for a tailor-made property law, specifically for your community!
- Gather the results of a variety of community members to compare and contrast preferences. Understand how much overlap or differentiation there is in terms of preferences
- Have the exercise conducted by members in their capacity as individual residents, and by those who work, or have experience, in relevant areas to complete the exercise from the perspective of collective governance, including what might be preferable from an administrative standpoint.
- You may note that there is a difference between what is preferable and possible now versus what would be the ideal separation of rights and responsibilities in the future. Make a note as it could help you with long-term community planning.
- Strategize how to structure government institutions and community organizations to implement the consensus model of property relations that emerge.