Land Claims

[charter.rights]

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".

Yet the Crown recognizes the independent state of Six Nations and has recognized the Confederacy Government as its legitimate representative.

The Royal Proclamation 1763 set out the boundaries and limits of the colonial governments. Canada does not fit in with any of those and must now prove that it gained land legitimately (as in valid surrender). We got away with claiming land for the country because we also made it illegal for Indians to hire lawyers to fight us. Yet now they can and do, it is the government that is on the hot seat. They can't prove our claims to either sovereignty or the acquisition of land because none of it complies with the Proclamation - the last and final word on the issue. The reality is we are a nation without a land base. Aboriginal people are the land title holders and we are indebted to them for our occupation and use. That could mean lots of cash (in the trillions) or the return of vast tracts of land to their possession and governance over.

[TimG]

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.

It does not represent any meaningful international consensus. It represents the deluions of professional activists and politically correct opportunists (which covers most UN hangers on). The document is considered nothing more than an "aspirational document" which no legal significance. In fact, that is how it was sold. Edited December 5, 2010 by TimG

[charter.rights]

It does not represent any meaningful international consensus. It represents the deluions of professional activists and politically correct opportunists (which covers most UN hangers on). The document is considered nothing more than an "aspirational document" which no legal significance. In fact, that is how it was sold.

Aspirational? Those are merely the opinions of the Harper government. But you can bet the Supreme Court will have a different view, especially in the light that the 'honour of the Crown' (this is a legal concept) will demand that they rule accordingly.

While Canada is not bound by it you can bet like any convention or declaration it will be used against us when it is proven that we are still racially motivated against First Nations and still don't comply with our own Constitution in their protection. Diplomatic consequences are just as powerful and influential on our government as Supreme Court rulings are. So maybe the declaration isn't binding it will have a legal effect on determination of land title and the property rights aboriginal people hold above us. I have read enough court rulings to understand that much.

[TimG]

But you can bet the Supreme Court will have a different view, especially in the light that the 'honour of the Crown' (this is a legal concept) will demand that they rule accordingly.

The SCC was already ruling based on many of these principals. But the SCC has also made it clear that two wrongs do not make a right and a remedy to correct historical wrongs must respect the interests of the non-aboriginal majority. It is a complicated juggling act and it is never clear where the SCC would come down on any individual claim but the SCC knows that rulings that are too expansive would trigger a consitutional crisis that would undermine the objective of reconciliation. Edited December 5, 2010 by TimG

[charter.rights]

The SCC was already ruling based on many of these principals. But the SCC has also made it clear that two wrongs do not make a right and a remedy to correct historical wrongs must respect the interests of the non-aboriginal majority. It is a complicated juggling act and it is never clear where the SCC would come down on any individual claim but the SCC knows that rulings that are too expansive would trigger a consitutional crisis that would undermine the objective of reconciliation.

Nope. That is just your wishful thinking. The Supreme Court has not ruled to protect the (non-existent)rights of non-natives. In fact where there is a potential conflict they have suggested that the government negotiated with First Nations. However, they have never abrogated any aboriginal right.

One need only predict the outcome of any SCoC challenge by looking at its past rulings. Where there are commonalities the Court has not only been quick to rule in favour of aboriginal rights, but have clarified and intensified the meaning of previous rulings. Just follow the requirement for consultation issue which the Court has said that it must be meaningful, and must include negotiation, accommodation and reconciliation. They have even gone so far as to begin to define what accommodation means, although it is not completely understood yet.

[TimG]

The Supreme Court has not ruled to protect the (non-existent)rights of non-natives.

I gave you an example with the Sarnia ruling. The SCC stated quite clearly that the Chippewa have no claim on land which is now privately owned - even if the surrender was invalid. The only claim is for damages but the value of the damages is left unspecifed. No large case for damages related to land claims has gone before the SCC so it is not reasonable to claim that precendents with small cases will be automatically followed. If the sums are large the SCC will have to consider the political implications which is what it did in the Sarnia case when it upheld the rights of landowners. Edited December 5, 2010 by TimG

[Jerry J. Fortin]

I gave you an example with the Sarnia ruling. The SCC stated quite clearly that the Chippewa have no claim on land which is now privately owned - even if the surrender was invalid. The only claim is for damages but the value of the damages is left unspecifed. No large case for damages related to land claims has gone before the SCC so it is not reasonable to claim that precendents with small cases will be automatically followed. If the sums are large the SCC will have to consider the political implications which is what it did in the Sarnia case when it upheld the rights of landowners.

Good point. As usual CR is jumping to conclusions.