Article 17 of UDHR in the Canadian Charter of Rights and Freedoms?

[Machjo]

No, it isn't. Every state has the right to expropriate property.

But certainly not arbitrarily. There certainly ought to be something in the constitution to at least set some kind of litmus test for reasonable seisure of property, no?

[Tilter]

I live in Manitoba and the concept(your graveyard example) does not exist here as you describe it..

Are yiou sure about that?

[pinko]

Are yiou sure about that?

Prove otherwise.

[Wild Bill]

It has already been established we have property rights. An informed citizen will not be intimidated by a lawyer advocating a particular point of view.

He damn well should be! There is a movement among government types to abuse the law to get what they want. I've seen it several times with my own municipality. They know that they are legally in the wrong but they also know that if it mainly affects "the little guy" then he can't afford to fight them! They have access to everyone's tax dollars. He has only his own.

I'm affected by this tactic right now. I just bought a modest house in the "poorer" part of town. It had been a grow op but the operation had been busted early on and the landlord forced to do all the government approved remedial action stuff, for which I have all the signed reports.

I thought I had done ok till one morning I was just finishing my bath when there was a loud, officious banging at my front door. It sounded important so I threw on some pants on my wet legs, hung a towel around my shoulders and went to the door. "You better not be a Jehovah Witness!" I said to a young fellow with a City of Hamilton pickup truck behind him.

He growls at me "Are you the new renter?" "No." I replied. He looked puzzled and then said "What are you doing here then?"

"I own the place." I replied. " Again he looked puzzled. "How did that happen?"

"I BOUGHT IT!" I said. "Isn't that the usual way?"

Turns out he was from the "grow op inspection department". Apparently, he was keeping an eye on the building since the bust. He was supposed to have inspected the premises after the cleanup work had been done.

"What does that have to do with me?" I asked. "I have other levels of government reports of the cleanup. I paid myself for a home inspection. I inspected it myself. What do you bring to the party?"

Then it comes out. Apparently, he wasn't supposed to let the previous owner skip out. There was supposed to have been a fee paid of $578. Since he had missed the previous owner then I WAS SUPPOSED TO PAY IT!

"I don't think so!" was my response. The previous owner was the criminal. I did nothing wrong! Is it supposed to be standard practice with a lawyer's title search to check with the City and see if they are behind in their inspections? I'm glad the previous owner hadn't stolen a Mazzeroti, or murdered someone. Would you be holding the new owner responsible for that as well?"

He demanded that I email the inspection reports I had and I agreed to reply to the address on his card. When I sent the file I informed him that although I understood that the City might indeed have the power to bully me into paying this fee I wasn't going to just hand it over. I would be consulting my lawyer. I also sent copies to my local councilor. Of course, I never did get a reply. This IS Hamilton, after all!

My lawyer was flabbergasted and advised me to bring him any invoice or paperwork as soon as I received it. It's been only a short time and I haven't seen anything yet. However, my lawyer also admitted that it could indeed wind up costing me MORE than $578 to fight the fee! So I very well might have to pay it. I can't afford to be a fiscal martyr to preserve the integrity of the judicial system!

So if a government lawyer tells you he wants your property, even if you don't want to sell or you don't like his price, be very afraid! Judicial matters are usually a contest of who can afford the best lawyers and the individual citizen can rarely compete.

[charter.rights]

What aboriginal claims are you referring to?

All of them stemming from the Royal Proclamation 1763. The government has to prove that land was surrendered following the rules. If it wasn't then the land belongs to aboriginal people.

Edited July 11, 2011 by charter.rights

[Machjo]

All of them stemming form the Royal Proclamation 1763. The government has to prove that land was surrendered following the rules. If it wasn't then the land belongs to aboriginal people.

So wouldn't UDHR 17 reinforce indigenous land claims? If so, then would it not be a good thing?

[charter.rights]

So wouldn't UDHR 17 reinforce indigenous land claims? If so, then would it not be a good thing?

Nope. Aboriginal title is a collective right - a plenum dominum (superior to all others) as nations apart from Canada not a single one under common law.

[Machjo]

Nope. Aboriginal title is a collective right - a plenum dominum (superior to all others) as nations apart from Canada not a single one under common law.

Well if they're separte nations, then our laws wouldn't apply to them anyway, right? So give them their land back and leave it at that. This law would still apply to whatever land we have left.

[pinko]

TimG:

FYI

http://web2.gov.mb.ca/laws/statutes/ccsm/e190e.php

Expropriation of land of authority

8(1) Where an authority other than the Crown expropriates land of which another authority is an owner, either authority may apply to The Municipal Board to prescribe, and the board may prescribe, the terms and conditions, including the provision of other lands and facilities, upon which the expropriation may proceed, and the board may, in its absolute discretion, order that the expropriation be abandoned.

Paramount rights preserved

8(2) Nothing in this section limits any paramount right that an authority has by statute.

Considerations in municipal expropriation

8(3) In respect of the expropriation of land in a municipality by another municipality, The Municipal Board shall include in its considerations the interests of each municipality and the owner and occupier of the land, the need for the proposed expropriation, the availability of other land, and any alternative to expropriating the land.

Jurisdiction over expropriated land

8(4) Land expropriated in a municipality by another municipality remains subject to the jurisdiction of the municipality in which it is situated and is subject to any tax levied by that municipality in respect of the land, unless the municipalities otherwise agree or The Municipal Board otherwise orders.

[charter.rights]

Well if they're separte nations, then our laws wouldn't apply to them anyway, right? So give them their land back and leave it at that. This law would still apply to whatever land we have left.

All of Canada is aboriginal land. The treaties we signed with them only gave us the right to share it. So do you really want to give it all back?

"...then our laws wouldn't apply to them anyway, right?"

The Charter of Rights and Freedoms says that we can't interfere with them, yes. And so we are stuck with the dilemma. Canada has no land, save and except that which we borrow from First Nations. We can't have property rights because our sovereign the Crown, doesn;t hold title.

[Machjo]

All of Canada is aboriginal land. The treaties we signed with them only gave us the right to share it. So do you really want to give it all back?

"...then our laws wouldn't apply to them anyway, right?"

The Charter of Rights and Freedoms says that we can't interfere with them, yes. And so we are stuck with the dilemma. Canada has no land, save and except that which we borrow from First Nations. We can't have property rights because our sovereign the Crown, doesn;t hold title.

If they are legally entitled to all land as per treaty, then how about we give it all back to them and then let them figure out what to do with us all.

My guess is they wouldn't really know what more to do with us other than just integrate us into the new nations. So they'd give us citizenship, and then we could petition them to recognize these laws.

Or, realizing that by giving us all citizenship, they'd find themselves in a minority again, with us all then voting to unite all these new nations back into Canada, they might just decide heck with it, to give us a portion of their land to live on and do what we want with it while their keep the rest. Again, we'd likely all unite, leaving us with a Swiss-cheese-looking Canada. Needless to say, they'd likely keep the best land and ensure they ave access to rivers or other waterways, and give us the land where we find the largest consentrations of non-First-Nations. So they'd probably give us all of our major cities, while keeping all the uninhabited rural lands. Who knows. But once we give them their land back, it wouldn't be our problem anyway. Then it would be up to them to figure out what to do with us. And of course if they want to protect their reputation abroad, they'd have to treat us reasonably fairly. That would certainly be an interesting pickle to throw at them.

[TimG]

If they are legally entitled to all land as per treaty, then how about we give it all back to them and then let them figure out what to do with us all.

CR has an absolutely bizarre interpretation of native rights in Canada. I would not take much of what he says at face value.

The basic facts are this:

1) Some native groups have not surrended their title to the land (mostly in BC). These groups have been granted 'aboriginal title' on lands if they can prove continuous occupation. However, many other groups have surrendered their title and have no case. His claim that all Canadian territory is aboriginal land has no basis in fact.

2) Aboriginal title is a special form of land ownership within the soveriegnty of Canada. i.e. natives have rights like someone holding a fee simple title has rights but those rights do not change the fact that Canada is the soveriegn nation.

Lastly, the clarity act has outlined the steps that any aboriginal group much follow if it did wish to become a seperate nation. It must start by first holding a referendum that includes all residents of the area they claim (native and non-native). If they can get a clear majority on a clear question the federal government is obliged to negiotiate. However, the native group will have to assume a portion of the federal and provincial debts and will likely need to allow non-native communities to stay with Canada. It is not easy but possible which is why have have no patience for first nations whining about sovereignty. If they want it they can have it but no more of this pretending they are sovereign nations when they really are nothing but wards of the Canadian state.

Edited July 12, 2011 by TimG

[Remiel]

We can't have property rights because our sovereign the Crown, doesn;t hold title.

This does not follow at all. You can perhaps argue that we do not in fact possess certain kinds of property, but that does not change the fact that one could establish rights to property that does belong to us. Family heirlooms from the Old Country, for instance, have nothing to do with native title. Imported goods obtained from other countries in exchange for services or intellectual property exported to other countries also result in property that have nothing to do with aboriginal title. I could perhaps just say that imported products bought with imported money in general have nothing to do with aboriginal title.

[Machjo]

CR has an absolutely bizarre interpretation of native rights in Canada. I would not take much of what he says at face value.

The basic facts are this:

1) Some native groups have not surrended their title to the land (mostly in BC). These groups have been granted 'aboriginal title' on lands if they can prove continuous occupation. However, many other groups have surrendered their title and have no case. His claim that all Canadian territory is aboriginal land has no basis in fact.

2) Aboriginal title is a special form of land ownership within the soveriegnty of Canada. i.e. natives have rights like someone holding a fee simple title has rights but those rights do not change the fact that Canada is the soveriegn nation.

Lastly, the clarity act has outlined the steps that any aboriginal group much follow if it did wish to become a seperate nation. It must start by first holding a referendum that includes all residents of the area they claim (native and non-native). If they can get a clear majority on a clear question the federal government is obliged to negiotiate. However, the native group will have to assume a portion of the federal and provincial debts and will likely need to allow non-native communities to stay with Canada. It is not easy but possible which is why have have no patience for first nations whining about sovereignty.

I'll admit I don't know the details here. My only concern is that if the First Nations gave Britain any lands by treaty in good faith in excahnge for certain rights etc., that we may have reneged on, then certainly we ought to give them that right pronto and let the chips fall where they may. Chances are in reality, many of these groups would not start kicking people out of their homes and such because quite frankly, I don't think they'd know what to do with us.

[TimG]

I'll admit I don't know the details here. My only concern is that if the First Nations gave Britain any lands by treaty in good faith in excahnge for certain rights etc., that we may have reneged on, then certainly we ought to give them that right pronto and let the chips fall where they may.

There are examples where treaties were broken. But there are others where it is the native groups that are trying to reverse lawful surrenders by claiming that the natives who surrendered the land were not authorized to do so. So you can't assume that every native claim has merit.

Also, there is the issue of compensation. If land was wrongly taken in 1800 then its value in 1800 should be the basis for the claim. The current market value which includes many improvements does not enter into the equation.

[Machjo]

There are examples where treaties were broken. But there are others where it is the native groups that are trying to reverse lawful surrenders by claiming that the natives who surrendered the land were not authorized to do so. So you can't assume that every native claim has merit.

Also, there is the issue of compensation. If land was wrongly taken in 1800 then its value in 1800 should be the basis for the claim. The current market value which includes many improvements does not enter into the equation.

Fair enough, as long as it's done in full accordance with the law and in a spirit of good Faith. But however little or much is owed the First Nations, give it back to them and get it over with already so we can move on.

[TimG]

Fair enough, as long as it's done in full accordance with the law and in a spirit of good Faith. But however little or much is owed the First Nations, give it back to them and get it over with already so we can move on.

Part of the problem are first nations who refuse to give up their vision of a race based feudal state. A native group that just said they wanted cash compensation and that would be it would likely have no problems getting their claimed settled (unless the claim was huge or has no merit). Edited July 12, 2011 by TimG

[Pliny]

Sexist language is being replaced by gender neutral alternatives. Dated patriarchal pronouns now stick out like a sore thumb (gender neutral).

The mistake is in emotionally reacting to gender neutral statements and saying they are patriarchal.

No one is going to say, "No one shall be abitrarily deprived of it's property". And no one is going to say, "No one shall be arbitrarily deprived of his/her property. "No one" means "no person" and I believe women today are deemed persons. When we say "actor" today does that mean that females are excluded from the term? I welcome the day when actresses return to the stage.

The whole gender thing in the English language is mostly based in emotional reaction and if it were affecting the romance languages in the same manner they would have disappeared by now.

[charter.rights]

The Supreme Court set out a test in the Chippewas of Sarnia v. Canada which lists criteria they interpreted from the Royal Proclamation and from native law and custom that must be present in the history of any purported surrender. If the treaty doesn't meet all points in the test, then it is invalid.

In Delgamuukw v. British Columbia the Supreme Court set out that the sui generis (unique) nature of Aboriginal title arises from its inalienability in that even though the land could only be transferred to the Crown does not mean they hold a non-proprietary interest that cannot compete on an equal footing with other proprietary interests; that the title's source arises from the occupation of Canada prior to the Royal Proclamation 1763 and; Aboriginal title is communal in nature as a collective right by all members of a First Nation.

In the British High Court review of the legality of the repatriation of the Constitution in early 1982, Lord Denning wrote that aboriginal title was a plenun dominum right (superior to all others) until it was surrendered to the Crown and that the obligations recognized under the Royal Proclamation 1763 and under various treaties by the Crown of Great Britain were automatically transferred to the Crown of Canada upon the signing of the Constitution.

The reality in Canada is that Aboriginal Title is a real thing. The Crown of Great Britain never obtained title to Canada, or jurisdiction over aboriginal people - that is one of the many fallacies spread rampant. The fact is that First Nations are sovereign entities whom have a nation to nation relationship with the Crown. Treaties did not surrender land. They surrendered some rights for us to use the land and its resources in return for money and other considerations. Hunting and fishing rights as an example were not conveyed in treaty but were recognized in treaties as a pre-existing aboriginal right that was not extinguished with the treaty. Thus aboriginal people still hold some rights over land that many mistakenly believe was given away by them. The problem for us is that while treaties might have been signed years ago, because we are only dealing with rights and not real property, those signatories could not indenture future generations. That was the reason for the Supreme Court ruling that enfranchisement was an unconstitutional act. I trust when this argument makes it to the Supreme Court it will find the Court's legal sympathy and the government will be faced with trying to reconcile illegal occupation of Aboriginal lands.

Just one more thing.....

I don't know about most First Nations' laws but the Haudenosaunee Constitution while it allows immigration,it does not give the immigrants a right to vote. Given that southern Ontario is Six Nations / Haudenosaunee Territory, it would mean that Ontario would practically be under an oligarchy under Six Nations rule if we gave the land back and then tried to assert some trickery in giving it back to Canada.

Edited July 12, 2011 by charter.rights

[TimG]

Given that southern Ontario is Six Nations / Haudenosaunee Territory

Actually, Six Nations is on territory that belongs to another aborginal group. This means any claims Six Nations mades are subject to following assumptions:

1) The surrender of the land by the original group was valid;

2) The transfer to Six Nations was done within a context where the British retained sovereignty over all lands.

IOW, Six Nations may have some claims on a few tracts around Brantford but the grandeous claims of owning large chunks of southern ontario is nonsense.

Edited July 12, 2011 by TimG

[bush_cheney2004]

The mistake is in emotionally reacting to gender neutral statements and saying they are patriarchal.

No one is going to say, "No one shall be abitrarily deprived of it's property". And no one is going to say, "No one shall be arbitrarily deprived of his/her property. "No one" means "no person" and I believe women today are deemed persons. When we say "actor" today does that mean that females are excluded from the term? I welcome the day when actresses return to the stage.

Sorry, but style guides already indicate you have lost this battle. Gender neutral language is all the rage.

The whole gender thing in the English language is mostly based in emotional reaction and if it were affecting the romance languages in the same manner they would have disappeared by now.

Was it emotional in 1850 as well?

[charter.rights]

Actually, Six Nations is on territory that belongs to another aborginal group. This means any claims Six Nations mades are subject to following assumptions:

1) The surrender of the land by the original group was valid;

2) The transfer to Six Nations was done within a context where the British retained sovereignty over all lands.

IOW, Six Nations may have some claims on a few tracts around Brantford but the grandeous claims of owning large chunks of southern ontario is nonsense.

Nope.

Read my post again and then look at the maps:

Mitchell Map 1757 Then zoom in to either where Algonquin Park is today or to where Walkerton Ontario is.

The Jeffreys Map 1776 Zoom in as above.

Six Nations has never surrendered Ontario and according to the rules for aboriginal title held by the Supreme Court of Canada, southern Ontario is Six Nations territory. The Mississauga Purchase was nothing more than a relocation fee. The Mississauga could not and did not surrender southern Ontario in 1784. Further the meeting at Burlington where the purchase was made would not meet the tests set out in the Chippewas of Sarnia v. Canada.

Just as Six Nations compelled the British to remove squatters when they relocated back to the Grand River, they requested that the Mississauga be relocated and paid for their inconvenience.

Finally, a recent excavation at Burlington unearthed a 750AD Seneca village. Similar village sites along the shores or Lakes Erie and Ontario and 100 km northward and along the St. Lawrence dating to 1200AD and earlier prove that Six Nations has been in continuous occupation of Southern Ontario for over 1000 years.

Edited July 12, 2011 by charter.rights

[TimG]

The Mississauga could not and did not surrender southern Ontario in 1784. Further the meeting at Burlington where the purchase was made would not meet the tests set out in the Chippewas of Sarnia v. Canada.

Nothing but hypocritical special pleading. The Six Nations claim requires that Six Nations accept the notion that Mississauga's lawfully surrendered their land. More importantly, Six Nations cannot meet the *continuous* occupation test set out in Delgamuukw so there can be no aboriginal titleby Six Nations on that land.

In any case, I realize that you are dedicated to creating a mythology that has little connection with what the SCC rulings actually said.

[charter.rights]

Nothing but hypocritical special pleading. The Six Nations claim requires that Six Nations accept the notion that Mississauga's lawfully surrendered their land. More importantly, Six Nations cannot meet the *continuous* occupation test set out in Delgamuukw so there can be no aboriginal titleby Six Nations on that land.

In any case, I realize that you are dedicated to creating a mythology that has little connection with what the SCC rulings actually said.

I have been researching and assisting First Nations in land claims issues for about 25 years.

I can assure you that southern Ontario belongs to Six Nations and has for over 1000 years.

The Mississauga(who became the 8th member of the Six Nation Confederacy) were invited down into southern Ontario by Six Nations and a treaty in 1656 signed at Taiaiagon (which is now Toronto) offered them the opportunity to use the land while Six Nations was pre-occupied elsewhere trying to stop the colonial encroachments on their lands. This is known as the Two Spoons One Bowl treaty and is cover by a wampum belt created for that purpose, and witnessed and recorded by French colonials.

Previous to that Six Nations drove the remaining Wendat whose populations were devastated by diseases brought by the Jesuits, out of southern Ontario (near Georgian Bay). Some went to Quebec City with their French allies while others fled to Michigan into the Beaver Hunting Grounds.

In 1701 Six Nations surrender Michigan and parts of Ohio to the British under the Nanfan treaty citing that they were tired of being harassed by the Wendat when they went there to hunt. (You'll find the surrender lines on the Mitchell map if you care to even study it.)

When Six Nations indicated to the British that they would retire back to the Grand River they wanted to compensate the Mississauga for their care-taking and so arranged the meeting at Burlington and brokered the deal. It was not a surrender, nor was any treaty or surrender documents created.

[Pliny]

Sorry, but style guides already indicate you have lost this battle. Gender neutral language is all the rage.

I know.

Was it emotional in 1850 as well?

Many people lost sleep over it, I'm certain.