The Coward of Caledonia?

[joan]

The matter is far simpler; the FN's of Caledonia are at war with the people of Ontario. McGuinty should act accordingly.

simply nonsense :lol:

There is no law to support that.

[charter.rights]

The matter is far simpler; the FN's of Caledonia are at war with the people of Ontario. McGuinty should act accordingly.

Cow dung.

SN is applying proprietary estoppel as the only means left to prevent development occupation on their lands without their consent. This is a legal issue and at point the government's failure to comply with its own laws. Clear and simple.

Edited January 28, 2008 by charter.rights

[jbg]

SN is applying proprietary estoppel as the only means left to prevent development occupation on their lands without their consent.

Learn one of Canada's official languages. "Estoppel" is a legal term meaning that a person is prevented from taking a legal position that would be unfair for certain reasons, even if otherwise valid. It has nothing to do with the breaking of the government's monopoly on the legitimate use of force.

[Rue]

I don't know where you live, Rue...but where I live that stereotype equals reality.

---------------------------------------------

USA Today has come out with a new survey...apparently, three out of every four people make up 75% of the population.

---David Letterman

Its as much a part of reality as it is for non aboriginals too. That is the point. The fact that this is happening means we need to deal with the neglect that has fermented it precisely so that this cycle of despair can be broken.

I am not denying what you say. On the contrary I am saying its the exact reason we have to resolve this problem. Failures should not be an excuse to do nothing.

Now I know I sound like a pollyanna to you. I appreciate you haven't told me to f..off. I actually take what you say seriously I just come to a different conclusion about its signigicance.I will shadd up now.

[charter.rights]

Learn one of Canada's official languages. "Estoppel" is a legal term meaning that a person is prevented from taking a legal position that would be unfair for certain reasons, even if otherwise valid. It has nothing to do with the breaking of the government's monopoly on the legitimate use of force.

From Wikipedia although there are other legal texts which discuss this at length.

Proprietary estoppel

The traditional version of proprietary estoppel arises in relation to rights to use the land of the owner, and may even be effective in connection with disputed transfers of ownership. So if:

* one party represents that he or she is transferring an interest in land to another, but what is done has no legal effect, or

* merely promises at some time in the future to transfer land or an interest in land to another, and

* knows that the other party will spend money or otherwise act to his or her detriment in reliance on the supposed or promised transfer,

an estoppel may arise. Thus, in Dillwyn v Llwellyn (1862) 4 De G.F.& J. 517 C.A. a father promised a house to his son who took possession and spent a large sum of money improving the property. The father never actually transferred the house to the son. When his father died, the son claimed to be the equitable owner and the court ordered the testamentary trustees to convey the land to him. See also Inwards v Baker [1965] 2 Q.B. 29, C.A.

In Wilmott v Barber (1880) 15 Ch D 96, Fry J considered that five elements had to be established before proprietary estoppel could operate:

* the plaintiff must have made a mistake as to his legal rights;

* the plaintiff must have done some act of reliance;

* the defendant, the possessor of a legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff;

* the defendant must know of the plaintiff's mistaken belief; and

* the defendant must have encouraged the plaintiff in his act of reliance.

Although proprietary estoppel was only traditionally available in disputes affecting title to real property, it has now gained limited acceptance in other areas of law. Proprietary estoppel is closely related to the doctrine of constructive trust.

The term "proprietary estoppel" is not used in American law, but is part and parcel of the general doctrine of promissory estoppel. In English law, proprietary estoppel is distinct from promissory estoppel.

[AngusThermopyle]

I find it interesting that you and Joan like to talk about following the law, the law is on the Natives side, blah blah blah. It's interesting because in the next breath you turn around and state that the law doesn't apply to them as they are sovereign nations.

So what is it? Does Canadian law apply to Natives or not? Is it only applicable when suitable or convenient? How can they demand the protections and provisions of the law when they publicly state that Canadian law does not apply to them?

Just a question.

[charter.rights]

I find it interesting that you and Joan like to talk about following the law, the law is on the Natives side, blah blah blah. It's interesting because in the next breath you turn around and state that the law doesn't apply to them as they are sovereign nations.

So what is it? Does Canadian law apply to Natives or not? Is it only applicable when suitable or convenient? How can they demand the protections and provisions of the law when they publicly state that Canadian law does not apply to them?

Just a question.

The "law" applies to us - Canadians. It tells us to respect their right to land.

[AngusThermopyle]

The "law" applies to us - Canadians. It tells us to respect their right to land.

So in other words they only respect the law when it is convenient. Thanks for clearing that up.

[noahbody]

You miss the point, noahbody: They never gave up ownership of the land to the government: The government only acted as property manager. The land was and is theirs.

If crown deeds were issued, wouldn't that imply ownership was transferred? The government maybe acted as a realtor, not a property manager.

No I don't think the leases and mortgages are available online as they are part of the negotiations. However, it is a pretty standard clause that the property reverts to the seller if the buyer defaults (and they virtually all did.)

So your argument is based on assumptions, driven by what you hope to be true.

[joan]

If crown deeds were issued, wouldn't that imply ownership was transferred? The government maybe acted as a realtor, not a property manager.

So your argument is based on assumptions, driven by what you hope to be true.

Again you bypass the point:

Valid sales, leases require that payment be made, or the property reverts to the original owner.

The people who leased/bought Six Nations land never made payment, so the land reverted to Six Nations long ago.

The Confederacy is now in the process of informing the residents of the Haldimand Tract and their municipal governments of this fact.

See, the government is caught in a deceitful web of governments' own making, and refuses to address either possible outcome:

- If they say the lots were legitimately sold, they have to provide the money (in today's currency, with compound interest)

- If they say they were not paid for, Six Nations owns the land outright.

- As for leases, the outstanding payments are HUGE, and the Ontario land deeds are invalid.

For example, for one portion of Brantford the outstanding leases amount to $252b in today's money, and compound interest has to be added to that, according to a recent ruling of the Supreme Court.

This is the dilemma our governments find themselves in due to Canada's consistent pattern of illegal acts in regard to Aboriginal land.

Six Nations can bankrupt Canada all by itself, if that is what they chose to do. Instead, they are working with governments and residents to arrive at mutually acceptable solutions. The difference is that this time the balance of benefit will be theirs, not ours, for a change. I am quite certain, for example, they will not kidnap and torture and murder our children.

We should be thankful they are decent people not inclined to revenge, and not inclined to the devious and hateful things our governments have done to them. They are better people than we are.

Edited January 28, 2008 by joan

[gc1765]

I use the 3rd World after the British left as my guide...Kenya...how's that little chunk of real-estate doing these days? Or Pakistan?...lol.

Before the British arrived, Kenya's economy was on par with countries that are now rich (europe, japan etc.), and other countries were even more advanced (china). North America (much like Britain) also had the advantage of much more favourable geography than either Kenya or Pakistan. So there is no reason to suggest that North America's economy wouldn't have flourished the same way as Britain's did.

[AngusThermopyle]

Before the British arrived, Kenya's economy was on par with countries that are now rich (europe, japan etc.), and other countries were even more advanced (china). North America (much like Britain) also had the advantage of much more favourable geography than either Kenya or Pakistan. So there is no reason to suggest that North America's economy wouldn't have flourished the same way as Britain's did.

Show some proof please.

Kenya was in a very good position under British rule. After they left Kenya became a stinking cesspool. In one word it reverted in a big hurry. One reason was the wholesale murder of farming families. It is now one of the has not nations, under the Brits it was a has nation. Before the Brits Kenya didn't have an economy, it was tribal and as such very limited in advancement and any kind of development. Unless you count a bunch of people living in wattle huts and herding a few head of scrawny cattle as advanced.

[M.Dancer]

Before the British arrived, Kenya's economy was on par with countries that are now rich (europe, japan etc.), and other countries were even more advanced (china).

Unless you mean the British of 45 AD, I find that very unlikely that the Kenyan economy was anything near the level of britain's from the early middle ages onwards....

[gc1765]

Before the Brits Kenya didn't have an economy, it was tribal and as such very limited in advancement and any kind of development. Unless you count a bunch of people living in wattle huts and herding a few head of scrawny cattle as advanced.

What most people seem to forget is that Europe was also quite poor & full of disease prior to the industrial revolution. Africa may have been a bit behind the rest of the world, likely due to adverse geography, but virtually every other region of the world was equally poor.

[Wild Bill]

Six Nations can bankrupt Canada all by itself, if that is what they chose to do. Instead, they are working with governments and residents to arrive at mutually acceptable solutions. The difference is that this time the balance of benefit will be theirs, not ours, for a change. I am quite certain, for example, they will not kidnap and torture and murder our children.

We should be thankful they are decent people not inclined to revenge, and not inclined to the devious and hateful things our governments have done to them. They are better people than we are.

Bankrupt Canada? In what court?

Any government that caved to such ridiculous demands would be hooted out of office by Canadian citizens. The natives in effect would be expecting such a government to commit political suicide.

Of a certainty the natives would never get such judgments or Canada would simply refuse to pay! Certainly, all Indian Act payments would be considered in any theoretical judgement.

[DogOnPorch]

Before the British arrived, Kenya's economy was on par with countries that are now rich (europe, japan etc.), and other countries were even more advanced (china). North America (much like Britain) also had the advantage of much more favourable geography than either Kenya or Pakistan. So there is no reason to suggest that North America's economy wouldn't have flourished the same way as Britain's did.

What most people seem to forget is that Europe was also quite poor & full of disease prior to the industrial revolution. Africa may have been a bit behind the rest of the world, likely due to adverse geography, but virtually every other region of the world was equally poor.

Another fanboy of the 3rd World that needs to review Western Civilization's rise... Sorry, but you'll have to try harder than that to rewrite history. James Burke is just a page or so back...give 'er a go.

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SKipper!!! Professor!!! Mary-Ann!!!!

---Gilligan

[gc1765]

Another fanboy of the 3rd World that needs to review Western Civilization's rise... Sorry, but you'll have to try harder than that to rewrite history. James Burke is just a page or so back...give 'er a go.

Wow. That is one of the most well-thought out & well-argued points that I have ever seen. Kudos.

[DogOnPorch]

Wow. That is one of the most well-thought out & well-argued points that I have ever seen. Kudos.

You're welcome...c'mon....give it a go...then we'll argue proper.

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Ho-Ho-Ho...Green Giant

Edited January 29, 2008 by DogOnPorch

[blueblood]

Bankrupt Canada? In what court?

Any government that caved to such ridiculous demands would be hooted out of office by Canadian citizens. The natives in effect would be expecting such a government to commit political suicide.

Of a certainty the natives would never get such judgments or Canada would simply refuse to pay! Certainly, all Indian Act payments would be considered in any theoretical judgement.

Bingo, it would seem that some posters do not grasp the simple concept of democracy. Keep up these ridiculous demands and consequences could come.

The charter is written in ink and can be changed. Piss off the 20+ million other Canadians who bankroll their little social experiment and see what happens. Land was expropriated, get over it.

The people of Canada make the law and set the rules, not Trudeau's half assed idea.

We should take a look at what happened in the Ukraine with the Orange Revolution and in Serbia with Slobodan Milosevic being chased out of his palace while the police did nothing as the consequences of pissing off the majority of a country's citizens.

[joan]

Bankrupt Canada? In what court?

Any government that caved to such ridiculous demands would be hooted out of office by Canadian citizens. The natives in effect would be expecting such a government to commit political suicide.

Of a certainty the natives would never get such judgments or Canada would simply refuse to pay! Certainly, all Indian Act payments would be considered in any theoretical judgement.

In the Supreme Court of Canada.

Get familiar with the laws, eh?

Some governments have to follow them too!

And no bingo, we can't change them.

Point being: What Canada owes only to Six Nations could bankrupt the country.

Final point: The more Canada jerks them around, the more expensive the settlement gets.

Edited January 29, 2008 by joan

[M.Dancer]

What most people seem to forget is that Europe was also quite poor & full of disease prior to the industrial revolution. Africa may have been a bit behind the rest of the world, likely due to adverse geography, but virtually every other region of the world was equally poor.

Europe was also a trading empire that spanned the Globe and enriched itself to the point where an inductrial revolution was not only possible it became a manifest destiny.

Kenyans could count on trading to the next village...

[blueblood]

In the Supreme Court of Canada.

Get familiar with the laws, eh?

Some governments have to follow them too!

And no bingo, we can't change them.

Point being: What Canada owes only to Six Nations could bankrupt the country.

Final point: The more Canada jerks them around, the more expensive the settlement gets.

As much as you'd think we live in a dictatorship, I'd hate to burst your bubble and we don't. That defies logic and reasoning.

If you think 25+ million Canadians are going to keep putting up getting cheated out of their money by the first nations, that is fallacy. The fact that land claims are even being discussed is a sheer example of the majority of Canadian's genorosity and benevolence. The majority makes the rules, the majority gave first nations their special rights, and they can take them away as well.

[Rue]

Lets go back and clarify the actual legal issues that have resulted in the current issues to then understand how they can be resolved.

The Royal Proclamation of 1763 recognized and guaranteed aboriginal rights including land rights. Canadian courts have held this proclamation has the same force as a legal statute that has never been repealed.

When federal and provincial governments over the years ignored it they in fact did so illegally as they had no authority to ignore it which they did.

Legally it is absurd to think the aboriginal nations will not refer to this proclamation as part of their legal argument in each and every claim they have and the Supreme Court of Canada has made it clear it can not pretend this proclamation does not exist and will not.

It is this proclamation that defined aboriginal peoples as protected under the Crown’s sovereign powers and it is based on the assumption that aboriginals retain their collective rights to unceded lands in their possession.

This proclamation forbid the federal or provincial governments from granting away aboriginal lands and also prohibited settlement on aboriginal laws and both the federal and provincial governments deliberately violated these provisions repeatedly.

All these legal violations will not and can not be ignored in any legal resolution.

The Constitution Act of 1982 then serves to enshrine the legal concept that aboriginal nations preceded the Canadian federation and the Canadian federation legally inherited signed treaties between the aboriginals and the Crown prior to confederation.

That is precisely why S.35 recognizes aboriginal treaties and rights and made a point of clarifying in 35(s) that treaty rights includes rights that exist by way of land claims agreements.

S.35(4) states that the constitution only recognizes aboriginal rights which continued in existence on April 17, 1982. It does not recognize aboriginal rights extinguished prior to 1982. Some people feel the constitution did this so that Canada is not obliged to remedy or rectify any of its illegalities, i.e., illegal extinguishing of aboriginal rights prior to 1982.

However the more probable explanation of this is a deliberate attempt to keep the constitution neutral and silent as to any extinguished rights prior to 1982 so as to allow them to be further negotiated without the constitution forbidding such negotiation.

It does NOT force aboriginals to agree to any illegal extinguished rights prior to 1982 but allows them to consent to give up such rights as part of any future negotiations.

Aboriginal rights can not be extinguished unless aboriginals consent to that-you have to go back to 35(3) which clearly states land claims agreements are part of aboriginal rights.

All this does is give aboriginals an option when negotiating. Otherwise they would not be allowed by the constitution to negotiate on past illegal actions of the federal government and seek if possible practical resolutions.

Under the Charter, while s.15 does guarantee all individuals be treated as equals under the law without discrimination and many posters love to state aboriginals are trying to get extra rights and not be equal, it should be understood s.15(2) clearly states 15(l) does NOT preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged peoples. S.25 goes on to state quite clearly the Charter can not be construed as to take away aboriginal collective or treaty rights and it recognizes the rights and freedoms granted to the aboriginal peoples under the Royal Proclamation of 1763. Which brings us back full circle.

This is why when aboriginals negotiate, they have NO legal obligation to deal with any municipal or provincial government as to land rights and it is an exclusively federal matter.

This is why when aboriginals seek to discuss their collective rights, all they do is simply go back to the above laws which many of you just want the government to ignore.

The fact is legally the federal government and the entire legal system which necessarily means the provincial and municipal courts as well-have to deal with aboriginal land claims as a collective right, not an individual right.

In the non aboriginal word we define land rights on an individual basis but our law recognizes aboriginal rights which do not define land rights as individual rights but as collective ones.

These aboriginal collective rights have been defined in our courts as meaning traditional harvesting activities, (hunting, fishing, trapping ).

There is legal confusion in our courts how to define how aboriginal collective rights in regards to other surface and subsurface resource activities, i.e., mining, oil and natural has extraction.

There have been difficulties defining the collective rights of aboriginals to water. Ironically when its ice and frozen the courts seem o.k., have it melt and the courts get confused.

Collective aboriginal rights other then with land and resources, i.e., language, culture, religion, preservation and incorporation of customary aboriginal law into criminal law, etc., are actually working themselves through slowly, but they are being resolved to everyone’s agreement.

The fact is our legal system is establishing methods that allow aboriginal peoples to live in a parallel culture compatible to the mainstream one which undermines neither culture or legal system in areas other then land and resources.

So can it be done with land. Of course. The formula is not complex. We simply go back to the original treaty. We then define how it was breached by the federal and/or provincial government. We then define who now uses the land years later based on the illegal breach. We then define whether it is possible to compensate aboriginals by many methods and no its not always removing the people now on the land.

Sometimes it is more beneficial for aboriginals to keep the people there and work out a compensation scheme where a percentage of profit is given to the aboriginal nation entitled to the collective rights as well as an agreement whereby one party can continue to use the land while aboriginals also access it for hunting, etc.

That is possible. Its particularly feasible where the land is empty but large mineral companies want to exploit the land.

In situations such as Caledonia they would not have arisen in the first place had the provincial and federal governments gotten their act together and not created a situation where non aboriginals depending on their governments invested in activities on the land.

In such cases the federal government either has the obligation to compensate these non aboriginals and move then off, or negotiate to allow them to stay with financial compensation and other rights given to the aboriginals and no this will not bankrupt the nation.

Compensation includes percentages of future profits which aboriginal nations need for future generations-they do not need the cash all up front.

There have been some very creative resolutions which recognize the practical reality of moving people.

The point is the solutions have to be negotiated on a case by case basis which the federal government has not done and continues to drag its feet on because it knows it has broken the law and its politicians don’t want to accept responsibility because it won’t get them re-elected.

No there is no point blaming aboriginals over the fact our federal government has a legacy of lying, breaching treaties and failing to take responsibility for its actions.

No there is no point getting mad at non aboriginals who no fault of their own have invested their life savings in activities relying on their government which said they could.

If a finger is to be pointed, point it at the politicians of the past and present. Don’t point it at aboriginals the Canadian Armed Forces that did not ask to be the security front line or those people screwed by Caledonia who are not aboriginal.

It comes back to people like me-those idiot lawyers you hate, who have to sit and engage in collaborative legal practice and mediate amicable resolutions.

[noahbody]

Valid sales, leases require that payment be made, or the property reverts to the original owner.

The people who leased/bought Six Nations land never made payment, so the land reverted to Six Nations long ago.

The thing is land deeds were issued. This means payment for parcels of land was made from settler to the goverment, which was acting on behalf of the Six Nations as you note. This is why the Six Nations could claim monetary damages against the government, but cannot claim the land. For example:

On May 15, 1848, the land where the Douglas Creek Estates now sits was sold by the Crown to George Marlot Ryckman for 57 pounds and 10 shillings, and a deed — called a Crown grant — was issued to him.

http://aaron.ca/columns/2006-05-27.htm

[joan]

The thing is land deeds were issued. This means payment for parcels of land was made from settler to the goverment, which was acting on behalf of the Six Nations as you note. This is why the Six Nations could claim monetary damages against the government, but cannot claim the land. For example:

http://aaron.ca/columns/2006-05-27.htm

That reflects the agreement. However, the government negotiators have not even claimed that any payments were made.

Edited January 29, 2008 by joan