The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Canadian Indigenous Nations Use Exemptions From Zoning Rules to Build Affordable High-Rise Housing
They are to be commended. But other property owners should also be freed of exclusionary zoning.
Like many parts of the United States, several major cities in Canada have severe housing shortages caused by exclusionary zoning - rules that forbid or severely restrict the construction of relatively low-cost multifamily housing. In some places, however, Canadian indigenous nations (known as "First Nations") have been able to get around these rules. A recent article in the Canadian publication Maclean's has an interesting description of one such project in Vancouver (one of the cities most severely impacted by zoning restrictions):
Vancouver has long been nicknamed the "city of glass" for its shimmering high-rise skyline. Over the next few years, that skyline will get a very large new addition: Sen̓áḵw, an 11-tower development that will Tetrize 6,000 apartments onto just over 10 acres of land in the heart of the city. Once complete, this will be the densest neighbourhood in Canada, providing thousands of homes for Vancouverites who have long been squeezed between the country's priciest real estate and some of its lowest vacancy rates.
Sen̓áḵw is big, ambitious and undeniably urban—and undeniably Indigenous. It's being built on reserve land owned by the Squamish First Nation, and it's spearheaded by the Squamish Nation itself, in partnership with the private real estate developer Westbank. Because the project is on First Nations land, not city land, it's under Squamish authority, free of Vancouver's zoning rules. And the Nation has chosen to build bigger, denser and taller than any development on city property would be allowed.
The project and others like have come under fire from a coalition of NIMBY interests and left-wingers angry that First Nations has deviated from "indigenous ways of being":
Predictably, not everyone has been happy about it. Critics have included local planners, politicians and, especially, residents of Kitsilano Point, a rarified beachfront neighbourhood bordering the reserve. And there's been an extra edge to their critiques that's gone beyond standard-issue NIMBYism about too-tall buildings and preserving neighbourhood character. There's also been a persistent sense of disbelief that Indigenous people could be responsible for this futuristic version of urban living. In 2022, Gordon Price, a prominent Vancouver urban planner and a former city councillor, told Gitxsan reporter Angela Sterritt, "When you're building 30, 40-storey high rises out of concrete, there's a big gap between that and an Indigenous way of building."
…. In 2022, city councillor Colleen Hardwick said of [a similar development], "How do you reconcile Indigenous ways of being with 18-storey high-rises?" (Hardwick, it goes without saying, is not Indigenous.)
…What chafes critics, even those who might consider themselves progressive, is that they expect reconciliation to instead look like a kind of reversal, rewinding the tape of history to some museum-diorama past. Coalitions of neighbours near Iy̓álmexw and Sen̓áḵw have offered their own counter-proposals for developing the sites, featuring smaller, shorter buildings and other changes. At the January hearing for Iy̓álmexw, one resident called on the First Nations to build entirely with selectively logged B.C. timber, in accord with what she claimed were their cultural values…That attitude can cast Indigenous people in the role of glorified park rangers.
The Squamish Nation is right to ignore both the NIMBYs and left-wing naysayers. NIMBYism should not be allowed to undermine property rights and block much-needed housing development. In places where demand is high and housing construction severely restricted, even many current homeowners have much to gain from legalizing new development.
As for the idea that First Nations should stick to "indigeneous ways of being," the right response is that they should be able to build whatever type of housing they want. White progressive critics of the Squamish project surely would not accept similar constraints for themselves. Should descendants of white Europeans also be limited to building the types of housing their ancestors built centuries ago, using the same sorts of materials? If it was good enough for your medieval peasant ancestors, it's good enough for you!
Economist Alex Tabarrok (my George Mason University colleague) notes that the Vancouver project is an example of the "charter city" concept at work, and highlights similar developments in the US:
The Catawba Indian Nation, for example, established the Catawba Digital Economic Zone (CDEZ), where I serve as an advisor. The CDEZ is based on US law but tailored for digital entrepreneurs, freelancers, FinTech, digital assets, Web3, and other exponential digital technologies. The progressive left probably isn't happy about that either. Personally I am delighted to support initiatives that empower indigenous communities through capitalist ventures. More broadly, however, I support the introduction of new governance models to encourage competition in governance—bring on a new era of discovery and Tiebout competition!
My only complaint is that indigenous groups should not be the only ones exempt from exclusionary zoning rules. Those restrictions should be abolished for all property owners, regardless of race or ancestry.
In the US, that should, I believe, be accomplished by a combination of legislative reform and stronger judicial enforcement of the Takings Clause of the Fifth Amendment. Canada's Charter of Rights and Freedoms does not include protection for property rights. So the optimal reform strategy there is likely to be different.
