Indigenous Rights and Title in Canada

kimmy · June 28, 2014

Is that happening? I haven't heard about people being forced from their homes yet.

Not yet, but there's nothing that says it can't happen. In this instance, there were only a few homes in the affected area, around Alexis Creek, which were purposefully excluded from the claim. There's nothing to ensure that private homes won't be part of the next claim, and nothing to ensure that the government won't take peoples' homes and land if that's what it takes to settle a claim.

-k

Smallc · June 28, 2014

I don't believe this ruling deals with already established homes and businesses. Unless the land is empty, a cheque will be written, as always. It's as simple as that.

cybercoma · June 28, 2014

Not yet, but there's nothing that says it can't happen. In this instance, there were only a few homes in the affected area, around Alexis Creek, which were purposefully excluded from the claim. There's nothing to ensure that private homes won't be part of the next claim, and nothing to ensure that the government won't take peoples' homes and land if that's what it takes to settle a claim.

-k

What indications have you seen that makes you think this might happen in the future? I just don't understand what makes you come to this conclusion.

jacee · June 28, 2014

Some of the claims are far too expensive to ever pay. That's why I say that at some point, Constitutional legislation may be the only answer.

Our legal liabilities cost too much, so we're going to unilaterally change the Constitution (etc) all the way back to 'contact' so we don't have to pay? :lol:

Not going to happen.

Keep in mind that there's no benefit to Indigenous Peoples to bankrupt Canada. Their economic health and wellbeing is firmly tied to a healthy Canadian economy.

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Smallc · June 28, 2014

Then why the outrageous claims, such as the one you always trot out? Trillions of dollars just isn't going to happen. My scenario is far more likely.

jacee · June 28, 2014

Not yet, but there's nothing that says it can't happen. In this instance, there were only a few homes in the affected area, around Alexis Creek, which were purposefully excluded from the claim. There's nothing to ensure that private homes won't be part of the next claim, and nothing to ensure that the government won't take peoples' homes and land if that's what it takes to settle a claim.

-k

"Nothing" ... except the fact that the public outcry would totally destroy whatever party in power did that, and they would never ever ever be elected again!

We do have that power!

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Edited June 29, 2014 by jacee

jacee · June 28, 2014

Then why the outrageous claims, such as the one you always trot out? Trillions of dollars just isn't going to happen.

???

My scenario is far more likely.

A cheque for occupied properties you mean?

Yes, I agree.

In some cases settlements can include funds and first option for the FN to purchase properties that do come up for sale, where there is a particular need or reason for that

The village of Deseronto (on Tyendenaga territory) is an example of that.

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Smallc · June 28, 2014

I have no problem settling claims as long as they're reasonable. I think I was confusing you with Charter Rights, who claimed the Six Nations were owed more than the value of the Canadian economy.

jacee · June 29, 2014

I have no problem settling claims as long as they're reasonable. I think I was confusing you with Charter Rights, who claimed the Six Nations were owed more than the value of the Canadian economy.

Well, that's quite possible.

Think, for example, of the actual $ value of the 1700+ square miles of territory that the Tsilhqot'in just got title to.

Six Nations territories are in expen$ive S Ont, and they have a population of ~30,000 people throughout Ontario, 20 to 30 times the population of most First Nations.

It sounds pretty outrageous, but ... who knows. .

Edited June 29, 2014 by jacee

kimmy · June 29, 2014

What indications have you seen that makes you think this might happen in the future? I just don't understand what makes you come to this conclusion.

There's a news article going around today with a headline that says "Aboriginal Title does not overrule Private Property":

http://www.vancouversun.com/news/Aboriginal+title+does+overrule+private+property+limited+what+with+Crown+land+experts/9982642/story.html

But what it actually says is this:

“Whether it would trump private land interests is a question we don’t know the answer to,” said Rosanne Kyle, a Vancouver lawyer who practices aboriginal and environmental law.

Regardless, courts have vast discretion to impose “remedies” on rulings, so that a judge could limit the impact of land title claims on private landowners, or order compensation.

Read more: http://www.vancouversun.com/news/Aboriginal+title+does+overrule+private+property+limited+what+with+Crown+land+experts/9982642/story.html#ixzz35yyWTaUE

The implication is obviously that awarding aboriginal title on land that's privately owned certainly could have drastic effect on land-owners that would have them seeking compensation or mitigation from a judge.

Here are a couple more rulings about what happens when Aboriginal Title and private property collide:

In this one, a tribunal ruled that the TimberWest forestry company could not implement a pesticide program on privately owned lands which the Cowichan Tribes (of Vancouver Island) claimed aboriginal title to. The title is not yet even established, but is deemed to be plausible, so the Cowichan claims were given weight. TimberWest is the owner of this land, but because the land might be subject to aboriginal title, and because the pesticide program was deemed to be contrary to aboriginal spiritual beliefs, TimberWest was prevented from implementing their pesticide program.

Summary:

http://www.eab.gov.bc.ca/pest/pestsm03.htm

PDF:

http://www.eab.gov.bc.ca/pest/2002pes008a.pdf

And here's a case in which a judge ruled that a potential Aboriginal Title trumped the right of the land-owners to do with their privately owned land to do with as they wished. Weyerhauser forestry had received permission to sell a parcel of land to a company called Brascan who intended to remove the land from Tree Farm License. The BC ministry of forestry approved the agreement, but a first nation filed a lawsuit against the the deal.

After months of delay, Justice Lynn Smith of the BC Supreme Court released her decision in the Hupacasath First Nation lawsuit seeking to quash the decision of the Minister of Forests that approves the privatization of 70,300 hectares of private land in Tree Farm Licence 44 (TFL 44).

The ruling has far reaching implication for the future of BC’s forests and the role of First Nations in decisions affecting lands, including private lands.

The Court rejected arguments by the Crown and Brascan (now Island Timberlands) that Aboriginal Title could not exist on fee simple or private land.

http://dogwoodinitiative.org/in-depth/hupacasath_win_WeyycoBrascan_rich

Here's the government of Ontario web page about the Algonquin land claim:

https://www.ontario.ca/aboriginal/algonquin-land-claim

Key terms of a possible settlement
The negotiators for the Algonquins of Ontario, the Government of Canada and the Government of Ontario have agreed to recommend:

the transfer of 117,500 acres of Crown Lands to Algonquin ownership

$300 million as settlement capital provided by Canada and Ontario

defined Algonquin rights related to lands and natural resources

The negotiators have also agreed that:

no new reserves will be created

Algonquin Park will be preserved for the enjoyment of all

land will not be expropriated from private owners as a result of the settlement

Several years of work remain, including another stage of negotiations and consultations, before a Final Agreement can be reached.

Note the phrasing here: they didn't say private land can't be expropriated. They've just said they've agreed not to.

They also go on to assure readers again that:

land will not be expropriated from private owners
no one will lose access to cottages or private property
no one will lose access to navigable waterways

Here's another article about the Algonquin land claim...

http://www.cbc.ca/news/canada/ottawa/algonquin-land-claim-a-concern-for-ontario-hunters-1.1300960

This family has hunted on crown land from their camp since the 1920s, but that will come to an end. Although, the native assure them they'll allow a "transitional period".

And, while I read a number of Indian Affairs webpages assuring people that expropriation can't be used to resolve land claims, as far as I can determine there should be a little asterisk beside that which says that it only applies to claims being settled by the Specific Claims Tribunal. As far as I can determine, the Specific Claims Tribunal Act of 2008 is the only place it where expropriation is specifically ruled out.

-k

Saskfarmgirl · June 29, 2014

Yes that is legally true, but "taking the land" is also highly restricted on Aboriginal title land, by the new ruling. In this SCoC case, "We need it for logging" wasn't good enough.

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The thing is they are the ones logging it- they own logging companies and mills. I know because I am Native my husband was able to get work there when others were not.

One of the chiefs stated:

During an interview on CKNW’s Bill Good show Monday Chief Alphonse said this:

“Most of my people that are wanting to work are working. If you want to be working, it’s there. You might have to travel a little ways to get it, but the majority of people in the community are not working.”

Here’s more of what Chief Alphonse told radio listeners:

“You want to work, you want a job: they’re pretty easy to find up here in Williams Lake, as far as I’m concerned.” He went on to list a whole slew of projects in the area … Gibralter Mine, Mount Polley, Milligan, etc. and said local fort operations and mills are also back up and running.

He then goes on to say that they are looking at that land as a bank account (and rightly so) but are just waiting for the right company.

This is one of the chiefs that was out there saying' my people have no work, and then states that...unprompted....at around 14:50

He makes awesome points about being respected and being part of the process as they have been for a long time- including when they go in and log and mine..

3 sides to every story....his side....his side....and somewhere in the middle....closer to the truth

and here is the link

https://soundcloud.com/cknwnewstalk980/bill-good-show-mon-mar-3-lead

kimmy · June 29, 2014

"Nothing" ... except the fact that the public outcry would totally destroy whatever party in power did that, and they would never ever ever be elected again!

We do have that power!

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Well that's a whole lot of assumption.

First off you're assuming that such decisions would be made by elected officials, rather than unelected, unaccountable judges, lawyers, and negotiators.

Secondly, you're assuming it would be a major election issue.

Given the current belief in the purportedly magical power of Reconciliation with First Nations it might even be a popular move, at least with urban voters who comprise most of the electorate and are least likely to be adversely affected by any such decision.

It isn't difficult to picture a scenario where some politician stands in front of a rally of urban voters and trumpets such an agreement as a great victory for Canada, bringing Reconciliation and Healing and allowing the country to Move Forward in a Partnership between First Nations and Canadians, with the evicted rural Canadians being nothing more than an afterthought.

In fact I would expect to see urban enviro-weenie voters cheering as the government uses expropriation to "liberate" the "stolen land" from dirty white rural rednecks and restore it to it's rightful owners, the noble Stewards Of The Land, the heroic First Nations peoples whose spiritual beliefs will ensure that the land remains pure and pristine for all eternity.

-k

jacee · June 29, 2014

Given the current belief in the purportedly magical power of Reconciliation with First Nations it might even be a popular move, at least with urban voters who comprise most of the electorate and are least likely to be adversely affected by any such decision.

It isn't difficult to picture a scenario where some politician stands in front of a rally of urban voters and trumpets such an agreement as a great victory for Canada, bringing Reconciliation and Healing and allowing the country to Move Forward in a Partnership between First Nations and Canadians, with the evicted rural Canadians being nothing more than an afterthought.

I doubt people would see it that way.

And the reason it would happen would be because our governments are being a$$hole$ ... 'on our behalf'.

In fact I would expect to see urban enviro-weenie voters cheering as the government uses expropriation to "liberate" the "stolen land" from dirty white rural rednecks

!! Are you for real?

Who talks that way?

Oh right ... kimmy.

and restore it to it's rightful owners, the noble Stewards Of The Land, the heroic First Nations peoples whose spiritual beliefs will ensure that the land remains pure and pristine for all eternity.

-k

Nobody can guarantee that some private lands won't change hands. As you said - good info btw - Ontario has agreed no expropriation, willing seller-willing buyer only.

There may still be some uncomfortable situations no doubt.

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Edited June 29, 2014 by jacee

Smallc · June 29, 2014

Well, that's quite possible.

Think, for example, of the actual $ value of the 1700+ square miles of territory that the Tsilhqot'in just got title to.

Six Nations territories are in expen$ive S Ont, and they have a population of ~30,000 people throughout Ontario, 20 to 30 times the population of most First Nations.

It sounds pretty outrageous, but ... who knows. .

And if such a claim ever grows legs, it will quickly be legislated away by any means necessary. I promise.

jacee · June 29, 2014

And if such a claim ever grows legs, it will quickly be legislated away by any means necessary. I promise.

I'll bet some people felt that way about a claim for title to 1700+ square miles of BC too.

But they won, and the sky hasn't fallen yet.

There's a variety of Six Nations claims,

http://www.sixnations.ca/LandsResources/csFiledClaims.htm

http://www.sixnations.ca/LandsResources/csPotentialClaims.htm

and they can't be "legislated away" (no matter how hard you "promise") because that legislation would violate constitutional rights and be struck down.

That's the way our system of government works.

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Edited June 29, 2014 by jacee

Smallc · June 29, 2014

Constitutional legislation can't violate the Constitution. We've already been through this.

No government is going to bankrupt this country for land claims that exceed the value of the economy. It just wouldn't happen.

GostHacked · June 29, 2014

Constitutional legislation can't violate the Constitution. We've already been through this.

That does not mean the government won't try to modify items of the constitution, or laws protecting your rights and privacy. We have seen 3 attempts over the last couple years for a privacy bill to be rammed through. I would guess that this process of eroding land rights (of everyone) is constantly being looked at.

No government is going to bankrupt this country for land claims that exceed the value of the economy. It just wouldn't happen.

That is just a paper monetary value we assign to the land. It's all priceless and worthless at the same time.

Besides, Canada can do bankrupt tomorrow. The cash is not there, period. We are living in perpetual debt to the money changers and money junkies.

Remiel · June 29, 2014

I just went on the Six Nations of the Grand River website and tried to right click to open a link in a new tab and it told me that that functions had been disabled on their website. So I got the Hell out of there. I do not trust websites that have weird messages like that.

kimmy · June 29, 2014

I doubt people would see it that way.

And the reason it would happen would be because our governments are being a$$hole$ ... 'on our behalf'.

The impression I get from the media is that many Canadians would applaud just about anything the government might do to appease the natives. I think large numbers of Canadians are so upset about past injustices perpetuated against native people that they'd willingly support present-day injustice as a means of "making it right". Especially if it was just a relatively modest number of rural non-aboriginal people being displaced. "You gotta break a few eggs..."

!! Are you for real?

Who talks that way?

Oh right ... kimmy.

I exaggerate, but only slightly. I think you underestimate the amount of animosity and vitriol out there.

Nobody can guarantee that some private lands won't change hands. As you said - good info btw - Ontario has agreed no expropriation, willing seller-willing buyer only.

There may still be some uncomfortable situations no doubt.

"Willing buyer-willing seller" is a phrase I bumped into at least a dozen times yesterday reading various federal and provincial government websites, first nations websites, and press-releases from various government and first nations representatives seeking to reassure worried non-aboriginals.

For the Algonquin claim, they obviously did not want to pick a fight with the large number of well-heeled recreational property owners in an area not far from Ottawa where the fight would be right under the nose of the national media.

For the Chilcotin claim, it was easy to avoid the issue of private title because there isn't much private title in the area under claim, and they could easily be jigsawed out.

But they won't all be like the Chilcotin claim. There are claims all over the province, in areas that are less remote and more populated with non-native people. There *will* be claims where the judge has no choice but to conclude that aboriginal title and private property exist on the same land, and we don't know what will happen. I think it would be incredibly naive to assume that natives will be content to settle all these claims in a manner where they get Aboriginal Title but don't actually get the land.

But, leaving the possibility of expropriation aside, what else might happen in situations where it's ruled that aboriginal title and private property are in conflict?

Yesterday I cited the two cases where the forestry companies were restricted in what they were able to do with their land because a judge found it conflicted with a potential aboriginal title. That seems like a precedent that could apply equally to somebody who wants to build a home or dig a well or cut down a tree.

I could also picture some judge deciding that private property owners must make accommodations for native people where Aboriginal Title exists on private land. "Your property is on land that was used by the tribe as hunting territory, and for their annual smoke-hut ritual. Therefore you must accommodate tribe members who wish to access your property for tribe members who wish to hunt there or perform the smoke-hut ritual." And the next thing you know you've got native people wandering around your property with rifles 365 days a year, and a smoke-hut built on your front lawn, and smoke-hut celebrants camped out on your lawn all summer.

And I could also picture a judge deciding that Aboriginal Title grants the natives the right to buy your property whenever you do decide to sell it. "We're not expropriating your property, but when you do decide to leave, you have to sell it to the natives." Which would be devastating to property values, obviously.

-k

jacee · June 29, 2014

Constitutional legislation can't violate the Constitution. We've already been through this.

Constitutional change can't be made unilaterally by the feds ramming through legislation. We've already been through this.

No government is going to bankrupt this country for land claims that exceed the value of the economy. It just wouldn't happen.

No it wouldn't, because Indigenous Nations are smart enough to know that their economic health and wellbeing are tied to the health of the Canadian economy.

Doesn't mean the claims aren't worth that much though.

What do you think the $ value is of the 1750 square ~~miles~~ kilometres of BC that the Tsilhqot'in just got title to?

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Edited June 30, 2014 by jacee

jacee · June 29, 2014

The impression I get from the media is that many Canadians would applaud just about anything the government might do to appease the natives.

...

I exaggerate, but only slightly. I think you underestimate the amount of animosity and vitriol out there.

...

"Willing buyer-willing seller" ... various government and first nations representatives seeking to reassure worried non-aboriginals.

...

But, leaving the possibility of expropriation aside, what else might happen in situations where it's ruled that aboriginal title and private property are in conflict?

...

I could also picture some judge deciding that private property owners must make accommodations for native people where Aboriginal Title exists on private land.

...

And I could also picture a judge deciding that Aboriginal Title grants the natives the right to buy your property whenever you do decide to sell.

-k

Speculation, namecalling, vitriol, catastrophizing ... none are helpful.

The precedent we have now is that privately held lands were excluded from the Aboriginal Title claim.

Until we see something different, catastrophizing about 'the possible' is just vitriol. Not helpful.

People and communities that participate in vitriol and stirring up people's anxieties to - eg - get reelected aren't helping their own situation at all.

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Edited June 29, 2014 by jacee

Smallc · June 29, 2014

Constitutional change can't be made unilaterally by the feds ramming through legislation. We've already been through this.

.

I've never said that it could be (though your claim is incorrect - it depends what you're changing).

Remiel · June 30, 2014

I do not know the dollar value of 1750 square kilometres (it was not square miles), but I do know the people value: 87500 . Meanwhile, if I round up generously there are around 5000 Tsilhqot'in.

jacee · June 30, 2014

I do not know the dollar value of 1750 square kilometres (it was not square miles),

oops! thx

but I do know the people value: 87500 .

Living on the (now) Aboriginal Title land ?

With a property title?

Meanwhile, if I round up generously there are around 5000 Tsilhqot'in.

. Edited June 30, 2014 by jacee

kimmy · June 30, 2014

Speculation, namecalling, vitriol, catastrophizing ... none are helpful.

The precedent we have now is that privately held lands were excluded from the Aboriginal Title claim.

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There was no precedent set here. That's one of the key points that people keep overlooking. The ruling

The reason that no private property was affected by this ruling is that the Chilcotins chose not to claim any land that is private property. Therefore the Supreme Court decision had no opportunity to rule on what happens if Aboriginal Title and private title collide. Therefore we still don't have a precedent on that issue. The new precedent that we do have is that Aboriginal Title is now understood to apply not just to specific sites that tribes used, but to the whole region in which they lived-- "mountaintop to mountaintop" as one of their lawyers put it. It's a much broader interpretation of "traditional territory" than most people-- other than the natives, anyway-- had expected. The common belief used to be that "traditional territory" would be interpreted to mean specific sites-- the tribe set up camps at this lakeshore, and they migrated through that valley, so those are "traditional territory" but if your home is on this hillside then you'll be ok because the natives didn't use that hillside for any particular purpose. But the new interpretation holds that the whole region-- the lakeshore, the valley, the hillside, all of it-- "mountaintop to mountaintop" --is the traditional territory. That will cause a lot of people anxiety, people who until last week had assumed that their homes were well clear of what was considered "traditional territory".

So it was certainly very considerate and neighborly of the Chilcotins to choose not to lay claim to any land that their non-native neighbors hold private title to. But it was just that: a choice. That was something the Chilcotins elected to do, not something that the Supreme Court established in this ruling.

For land claims in more populated and less remote areas of the province, it will be much more difficult for land claims to be settled in a way that avoids private property. We still don't know what will happen. But based on the two rulings I posted yesterday, we do know two things.

First off, both rulings explicitly state that private title does not overrule aboriginal title. Both forestry companies argued that since they had legal title to the land, it simply didn't matter what traditional use the natives might have had of the land. Both times that argument was shot down.

Secondly, both rulings gave weight to preserving the land in a state suitable for what the natives' traditional use of the land was. In both disputes, the forestry companies were prevented from affecting their privately owned land in a way that would impact the traditional use of the land-- even though aboriginal title on the land had not even been established.

So it appears obvious that having private title to a piece of land doesn't guarantee you won't be affected by an awarding of aboriginal title. And aboriginal title will potentially impact your use of your land even if it's not taken from you. We can see that from these two rulings where judges have had to decide how to balance aboriginal title with private title.

So there *is* a precedent here, and it's a worrying one if you own rural land in BC.

People and communities that participate in vitriol and stirring up people's anxieties to - eg - get reelected aren't helping their own situation at all.

I have not heard any politicians attempting to exploit this issue to stir up anxieties for political gain. On the contrary, they haven't said-- as far as I know-- anything regarding the potential implications for private landowners in claimed areas.

And that's one of the things that really annoys me about all of this. We've had the back-patting and self-high-fives about What A Great Day This Is for Canada and for All Canadians. And we've had some speculation about what it might mean for the Northern Gateway pipeline. But I've seem almost nothing written about what it might mean for rural Canadians. I think my posts yesterday morning contained more research into that question than I've read in any media article.

-k