Land Claims

[KeyStone]

So, look. I hear talk about land claims all the time. I don't really know that much about it.

It seems that the First Nations and Inuit are constantly upset by the lack of progress on it, while most Canadians don't really pay much attention to it.

As a non-status Canadian, my general sense is that the cumulative amount of compensation sought after by the various bands is ginormous, to the extent that they can never be truly satisfied.

Now, one thing I don't understand about land claims:

Are they contracts that were agreed to but never honoured?

Or, do First Nations simply base their demands on past residence of the land?

Of, is there a gray area, where there are some contracts, but the interpretation is somewhat unclear?

[Guest TrueMetis]

Are they contracts that were agreed to but never honoured?

Or, do First Nations simply base their demands on past residence of the land?

Of, is there a gray area, where there are some contracts, but the interpretation is somewhat unclear?

I'll try to answer you to the best of my knowledge, in some cases the treaties were negotiated giving the First Nations a certain amount of land and the settlers a certain amount but the government took more land anyway. In other cases, such as BC, almost no treaties were signed at all leading to some problems with who owns what lands because of a past law giving all none ceded land to the First Nations.

Since every treaty is different it's very hard, if not impossible, to make a blanket statement regarding First Nations land, my feeling is the only way that this issue can be fully resolved are re-negotiations with each individual band. Not just ignoring it and screwing them over like some advocate and not giving them absolutely everything they want like others want. There has been some progress in this, some bands have given up all claims to their land and even their tax free status for a lump sum which then they invest in their community, some of these are successful others are not.

Edited December 5, 2010 by TrueMetis

[charter.rights]

So, look. I hear talk about land claims all the time. I don't really know that much about it.

It seems that the First Nations and Inuit are constantly upset by the lack of progress on it, while most Canadians don't really pay much attention to it.

As a non-status Canadian, my general sense is that the cumulative amount of compensation sought after by the various bands is ginormous, to the extent that they can never be truly satisfied.

Now, one thing I don't understand about land claims:

Are they contracts that were agreed to but never honoured?

Or, do First Nations simply base their demands on past residence of the land?

Of, is there a gray area, where there are some contracts, but the interpretation is somewhat unclear?

According to the Supreme Court of Canada, aboriginal land rights are a sui generis right resulting from a number of facts.

1. Land is inalienable in that it can only be surrender to the Crown (and not the government or private corporation or private individuals). As such the only way that land could be transferred was with a defined process that was clarified in the Chippewas of Sarnia v. Canada. Suffice to say that most treaties and purported surrenders never occurred.

2. All land in Canada originates in aboriginal title that was recognized in 1763 at the time the Royal Proclamation was made. This recognition in the RP1763 guarantees that aboriginal lands will not be disturbed or used without a surrender first taking place. It doesn't matter if the aboriginal occupation goes back in prehistory as long as there is proof it existed at the time of the Proclamation. So it is the Crown that must prove that land was actually surrendered since 1763, in accordance with the rules mentioned above.

3. Land is communal in nature in that not only is aboriginal land right individual but also belonged to the community and was share among different nations. The Supreme Court refers to this as a usufructary right and it is important in that the Crown not only has the onus of proving that land was surrendered by a particular band but that all bands in possession (sharing the land) also surrender their right to use it. This is the hardest thing to prove and it is one of the main reasons that the government continues to stall settlement of lands claims.

In a very important judicial review by the British High Court just months before the Constitution was repatriated in 1982, Lord Denning clarified that the Crown of Canada is the same Crown that made the treaties with First Nations, and the one that makes us responsible for the protection of aboriginal rights identified in the Proclamation 1763, and is binding on us 'as long as the gras grows and the shine will shine'. He wrote that aboriginal title is a "title superior to all others" and even when treaties were made they retained their personal and usufructary right to all the land. As such this means that regardless if treaties surrendered or ceded land to the Crown it was not a transfer that we would consider fee simple, but that rather the surrender was an agreement to share the land, with natives retaining their personal and communal rights to continue to use surrendered lands, albeit in in a more limited way.

And so, that is the nature of Canada: it is all still aboriginal land in which we have obtained certain rights to use it for settlement, or for the government to harvest and extract resources. However, the surrenders did not anticipate lands being used for development on an industrial scale and so these uses are outside of treaties. The Courts have upheld that the government and developers must consult with aboriginal people before development is commenced and that consultation must be extensive and meaningful, accommodating the natives interests, and reconciling their continued right to use the lands with the potential of development. Sometimes this has led to compensation and other times it has led to stand-offs and protests that ultimately killed the development, or criminalized the protesters. In any case governments must consult and there continues to be a reluctance by the government and lower courts to comply with the law, as if they are above it. This attitude will lead nowhere but to future economic disruptions and protests. The bottom line is that we have no rights to land in Canada and only by the grace of treaties, or the Honour of the Crown are we even permitted to live here.

[TimG]

Are they contracts that were agreed to but never honoured?

When the British empire was expanding they liked to come to an agreement with the existing inhabitants rather than simply use the time honoured approach of annexation after invasion. This tended to make life between the new settlers and the existing inhabitants a little less hostile and presumably reduced the cost of keeping the empire in tact. The process was formalized in 1763 when King George declared that native lands that were not explicitly surrendered to the crown were off limits to settlers.

What this meant is the colonial governments would periodically seek agreements with native groups asking them to cede territory in return for various promises. For most of Canada these agreements are in place and natives groups have no legal claim on much of the territory although there are disputes over some chucks of land where modern natives claim the legal agreements were not valid for one reason or another. In some cases, there are legitimate claims where land was illegally annexed but in other cases divisions within the native community are used to claim that the surrender was invalid. i.e. there was a legitimate agreement in place but modern natives try to argue that the people who signed it were not authorized. This leads to never ending arguments over what the duty of the crown was when it came to making sure the people surrendering the land were entitled to do so. There are also legitimate claims where the promises made by the government were not honoured but that does not mean the surrender was not valid - only that compensation for broken promises may be owed.

Unfortunately, in BC there are no treaties in place and the SCC has ruled that natives groups still have "aboriginal title" to all of their traditional lands if they can show they have been using those continuously until modern times. There is an entire industry set up to make "aboriginal title" claims because the rules are complex. Natives like to claim they own everything but the court rulings have made it clear that this is not necessarily the case. That said, there are some critical cases making there way through the system which will help settle these disagreements.

Perhaps the most important point to note is Canada is the sovereign nation everywhere. Natives are simply a subset of Canadians who have special rights which are acknowledged in the constitution. Claims that native groups represent "sovereign" entities are symbolic and of no legal significance. The SCC has made this clear in its rulings - self-government implies a lower tier of government designed to meet the needs of aboriginals.

Edited December 5, 2010 by TimG

[charter.rights]

What this meant is the colonial governments would periodically seek agreements with native groups asking them to cede territory in return for various promises.

In fact this is (was) illegal under the Royal Proclamation 1763 in that only land could only be surrendered to the Crown, and not the colonial governments.

RP1763

We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure. that

no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida. or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments.

Since Canada was not within the 4 colonies mentioned in the Proclamation any treaty is suspect unless it contains the Royal Seal. Most do not.

For most of Canada these agreements are in place and natives groups have no legal claim on much of the territory although there are disputes over some chucks of land where modern natives claim the legal agreements were not valid for one reason or another.

This is another myth. There are not valid agreements. In the Chippewa of Sarnia v. Canada, the Supreme Court set out 12 conditions that certified that a de facto treaty had taken place. Most treaties fail the points. As well the Supreme Court has also ruled that treaties are to be interpreted in a manner which would have been understood by the Indians at the time it was signed, and have given their oral history and accounts of the treaties equal or better weight in determining that understanding.

In some cases, there are legitimate claims where land was illegally annexed but in other cases divisions within the native community are used to claim that the surrender was invalid. i.e. there was a legitimate agreement in place but modern natives try to argue that the people who signed it were not authorized.

Those groups have a valid point despite your poor understanding of it. Under the Chippewa of Sarnia 12 points, one of the key points is that the treaty or agreement must have been signed by the principle men of the community recognized by the community as having that right. Another point is that there must be a record of the community coming to a consensus in agreement to the surrender.

No doubt you are referring to the 1844 agreement with Six Nations that Six Nations holds as invalid. It fails the Chippewa test on the above points, as well as a few more in that the community must have been clear that they desired the surrender, and that there was no coercion in their decision. In this case not on was there not consensus, or that the agreement was not signed by the principle men, but there was evidence that there was no intention to surrender land, but only to lease it. And finally in the memos that went back and forth there was clear evidence that the Indian Agent was threatening the use of force if the agreement was not signed.

And finally not only does this not represent a treaty for the above reasons, but it was never given Royal assent, nor was it celebrated in ceremony as was custom with all other agreements between the Crown and Six Nations. There was no surrender and no treaty especially since Six Nations rescinded any documents purporting to be a surrender in 1845, just to be sure.

This leads to never ending arguments over what the duty of the crown was when it came to making sure the people surrendering the land were entitled to do so. There are also legitimate claims where the promises made by the government were not honoured but that does not mean the surrender was not valid - only that compensation for broken promises may be owed.

First Nations trust are not only monies owed for treaty payments but they are for long term leases and benefits owed with interests to First Nations trust accounts. These accounts total in the $trillions.

Natives like to claim they own everything but the court rulings have made it clear that this is not necessarily the case. That said, there are some critical cases making there way through the system which will help settle these disagreements.

Overlapping claims demonstrate the complexities of the sui generis aboriginal title. The Supreme Court has ruled that aboriginal title while being superior to all others, is a personal and usufructary right. This means that where there are overlapping claims, it is not sufficient to settle with only one nation but that multiple nations have an equal right to be consulted.

Perhaps the most important point to note is Canada is the sovereign nation everywhere. Natives are simply a subset of Canadians who have special rights which are acknowledged in the constitution.

Another myth. No where in history did First Nations surrender their sovereignty, ever. The rights conveyed in the Charter (had you actually read it) demonstrate that they are outside of our sovereign control, and their rights cannot be diminished or altered by us for any reason. The long line of aboriginal jurisprudence over the last 30 year points to this fact. As well the Royal Proclamation 1763 is itself a codification of previous treaties, making it a treaty as well. We can't make treaties within our own sovereignty. First Nations are, as the name implies individual and sovereign nations, entitled to self-government, and holding a land base. On the other hand, Canada has no land base and therefore is indebted to First Nations. We are not a sovereign nation but a subordinate of our Sovereign the Queen of Canada. Canada is merely a corporation set out in the British North America Act to protect the financial interests of our corporations, and to provide a unified private army against the potential invasion by the US. Since we have evolved we have become nothing more than manager for big business that are subservient to the US corporate interests. Our indebtedness gives the US control of our economy, as well as our government and it seems that Confederation did nothing to protect anyone's interests.

Claims that native groups represent "sovereign" entities are symbolic and of no legal significance. The SCC has made this clear in its rulings - self-government implies a lower tier of government designed to meet the needs of aboriginals.

Six Nations has since they before the RP1763 asserted their own sovereignty and control over land and resources. They are sovereign. If you can prove differently, I would like to see it. (Oh and BTW a declaration is all that is need to assert one's sovereignty and Canada has never been able to assert that it is not subject to the Queen of Canada, HRM Armed Forces, HER Legal Insititutions or Her Parliament all of which can over-rule the government)

[Shwa]

So, look. I hear talk about land claims all the time. I don't really know that much about it.

It seems that the First Nations and Inuit are constantly upset by the lack of progress on it, while most Canadians don't really pay much attention to it.

As a non-status Canadian, my general sense is that the cumulative amount of compensation sought after by the various bands is ginormous, to the extent that they can never be truly satisfied.

Now, one thing I don't understand about land claims:

Are they contracts that were agreed to but never honoured?

Or, do First Nations simply base their demands on past residence of the land?

Of, is there a gray area, where there are some contracts, but the interpretation is somewhat unclear?

Treaties: http://www.ainc-inac.gc.ca/al/hts/index-eng.asp

Land Claims: http://www.ainc-inac.gc.ca/al/ldc/index-eng.asp

Enjoy!

[TimG]

In fact this is (was) illegal under the Royal Proclamation 1763 in that only land could only be surrendered to the Crown, and not the colonial governments.

The colony governments were run by agents of the crown.

This is another myth. There are not valid agreements.

The SCC disagrees. Here is one example where a land surrender was upheld despite the attempt to rewrite history: http://www.usask.ca/nativelaw/factums/view.php?id=101

It fails the Chippewa test on the above points, as well as a few more in that the community must have been clear that they desired the surrender, and that there was no coercion in their decision.

The Sarnia ruling also states:

In the result, we are of the view that the Chippewas have no entitlement to the remedies they seek for the return of the disputed lands and that they are left with their claim in damages against Canada and Ontario.

Which basically says natives have no rights to the land anymore even though there were questions about the validity of this surrender. Any attempt to put a dollar figure on damages is pure speculation at this point. The interests of a taxpayers who would have to pay the claim will be a factor in any court awarded damages so trillion dollar settlements based on current market values are nothing but a fantasy. The court will find a middle ground that addresses historical wrongs without being absurd.

Another myth. No where in history did First Nations surrender their sovereignty, ever.

Does not make a difference in law. Britian moved in and claimed sovereignty. Aboriginal groups could not dispute that by asserting their own sovereignty over the lands in question. The net result is Canada is sovereign. Native groups are entities within Canada and disputes are governed by Canada law.

[Jerry J. Fortin]

The colony governments were run by agents of the crown.

The SCC disagrees. Here is one example where a land surrender was upheld despite the attempt to rewrite history: http://www.usask.ca/nativelaw/factums/view.php?id=101

The Sarnia ruling also states:

Which basically says natives have no rights to the land anymore even though there were questions about the validity of this surrender. Any attempt to put a dollar figure on damages is pure speculation at this point. The interests of a taxpayers who would have to pay the claim will be a factor in any court awarded damages so trillion dollar settlements based on current market values are nothing but a fantasy. The court will find a middle ground that addresses historical wrongs without being absurd.

Does not make a difference in law. Britian moved in and claimed sovereignty. Aboriginal groups could not dispute that by asserting their own sovereignty over the lands in question. The net result is Canada is sovereign. Native groups are entities within Canada and disputes are governed by Canada law.

I think those are all valid points, nice job!

[bush_cheney2004]

....Does not make a difference in law. Britian moved in and claimed sovereignty. Aboriginal groups could not dispute that by asserting their own sovereignty over the lands in question. The net result is Canada is sovereign. Native groups are entities within Canada and disputes are governed by Canada law.

Well, clearly this is a one-sided result with the very definition and terms of "sovereign" being provided by Britain and/or Canada. It is little wonder that any associated court would not meaningfully challenge the status quo.

Edited December 5, 2010 by bush_cheney2004

[Jerry J. Fortin]

Well, clearly this is a one-sided result with the very definition and terms of "sovereign" being provided by Britain and/or Canada. It is little wonder that any associated court would not meaningfully challenge the status quo.

Laws are applied as written. Bad laws are challenged. That is the way things work on every nation on the planet. No different here.

[TimG]

Well, clearly this is a one-sided result with the very definition and terms of "sovereign" being provided by Britain and/or Canada. It is little wonder that any associated court would not meaningfully challenge the status quo.

It is not just Canadian courts. Our current international system is based on the presumption that the current sovereign states are legimate no matter what the historical context. Some lip service is given to some aboriginal claims in politically correct places like northern Europe but outside of there no one gives any credence to claims that aboriginal groups are 'soveriegn entities' in the themselves. Canada is the soverign state. Edited December 5, 2010 by TimG

[Jerry J. Fortin]

It is not just Canadian courts. Our current international system is based on the presumption that the current sovereign states are legimate no matter what the historical context. Some lip service is given to some aboriginal claims in politically correct places like northern Europe but outside of there no one gives any credence to claims that aboriginal groups are 'soveriegn entities' in the themselves. Canada is the soverign state.

Well said, and all true I might add.

[bush_cheney2004]

It is not just Canadian courts. Our current international system is based on the presumption that the current sovereign states are legimate no matter what the historical context. Some lip service is given to some aboriginal claims in politically correct places like northern Europe but outside of there no one gives any credence to claims that aboriginal groups are 'soveriegn entities' in the themselves. Canada is the soverign state - aboriginals have rights within that context.

Sure, but clearly you understand that such history and precedence is self fulfilling after a period of "discovery" and "conquest". Extinguishing aboriginal title cannot be solely determined by the same party that would benefit or continue to benefit (i.e. Great Britian).

http://www.duhaime.org/LegalDictionary/A/AboriginalTitle.aspx

Edited December 5, 2010 by bush_cheney2004

[Jerry J. Fortin]

Sure, but clearly you understand that such history and precedence is self fulfilling after a period of "discovery" and "conquest". Exstinguishing aboriginal title cannot be solely determined by the same party that would benefit or continue to benefit (i.e. Great Britian).

http://www.duhaime.org/LegalDictionary/A/AboriginalTitle.aspx

Well BC, you should be interested in the outcome of this since it applies to you folks down south as well as it does to us.

[bush_cheney2004]

Well BC, you should be interested in the outcome of this since it applies to you folks down south as well as it does to us.

I am interested, because American tribes and bands have not only prevailed in court for restoration of treaty rights and resource claims, but are using growing economic power to purchase land back (and removing it from tax rolls).

[TimG]

Sure, but clearly you understand that such history and precedence is self fulfilling after a period of "discovery" and "conquest".

Sure. But that is the history of the world. The bigger point is: there is no authority other than the SCC that has legimacy when it comes to resolving such disputes. The world court - like most UN related bodies - is political sideshow that has no ability to enforce its rulings. Enforcement is left up to the sovereign states in question.

[bush_cheney2004]

Sure. But that is the history of the world. The bigger point is: there is no authority other than the SCC that has legimacy when it comes to resolving such disputes. The world court - like most UN related bodies - is political sideshow that has no ability to enforce its rulings. Enforcement is left up to the sovereign states in question.

OK...but there are other ways...that's how the United States kicked the Sovereign squarely in the ass.

[charter.rights]

It is not just Canadian courts. Our current international system is based on the presumption that the current sovereign states are legimate no matter what the historical context. Some lip service is given to some aboriginal claims in politically correct places like northern Europe but outside of there no one gives any credence to claims that aboriginal groups are 'soveriegn entities' in the themselves. Canada is the soverign state.

You might want to read the UN Declaration on the Rights of Indigenous Peoples. It is explicit in that indigenous people have a right to their land not to be dispossessed of it by the state. The only one not yet signed on, of course is the US.

So the international community believes in the right of self government and indigenous sovereignty.

[charter.rights]

I am interested, because American tribes and bands have not only prevailed in court for restoration of treaty rights and resource claims, but are using growing economic power to purchase land back (and removing it from tax rolls).

And they have been recognized by the courts and by past presidents as sovereign nations.

[TimG]

So the international community believes in the right of self government and indigenous sovereignty.

No it does not. What you have is a meaningless declaration that wins some votes in countries with no aboriginal populations but is ignored everywhere else.

[TimG]

OK...but there are other ways...that's how the United States kicked the Sovereign squarely in the ass.

That is why aboriginals in the US have no rights other than what Americans choose to give them. If public does not like the SOCTUS interpretation of the consitution then the consititution can be changed. I suspect the tax free status will not last long if aboriginals holdings get large enough to hinder the functioning of government.

[bush_cheney2004]

That is why aboriginals in the US have no rights other than what Americans choose to give them. If public does not like the SOCTUS interpretation of the consitution then the consititution can be changed. I suspect the tax free status will not last long if aboriginals holdings get large enough to hinder the functioning of government.

True, but aboriginal title and dependent nation status, separate from the states, is so defined by the US constitution. The concept of title always being subordinate to a "crown" does not exist.

[TimG]

True, but aboriginal title and dependent nation status, separate from the states, is so defined by the US constitution. The concept of title always being subordinate to a "crown" does not exist.

I think the phrase "dependent nation status" pretty much confirms everything I have said. The terms are different because the system is different but the concept is the same.

[charter.rights]

No it does not. What you have is a meaningless declaration that wins some votes in countries with no aboriginal populations but is ignored everywhere else.

Canada and Australia - both with substantial aboriginal populations have signed on. It is the consensus of the world community that aboriginal need protection and the Declaration spells out how it will be protected.

[bush_cheney2004]

I think the phrase "dependent nation status" pretty much confirms everything I have said. The terms are different because the system is different but the concept is the same.

This may have been true early on when the US goverment replaced Great Britain as the "sovereign", but since the 1970's, tribes and bands have prevailed in self determination and rights assumed to exist unless specifically extinguished. This concept of enumeration and exclusion are quite different from any notion of the "Crown".