Clarke Ries: Confusion reigns after the latest court battle in the Indigenous land claims saga

Two different judges are trying to solve the same legal nightmare by applying judicial duct tape in slightly different ways. And it might work.

Who owns New Brunswick? It’s complicated!

By: Clarke Ries

The Wolastoqey people, once called the Maliseet, want title to the western half of New Brunswick. Another aboriginal tribe is seeking title to all of the unceded Crown lands in the eastern half.

Interesting times.

The litigation over the fate of a Canadian province is only in the second round or so of what promises to be a 12-round brawl. The preliminary skirmishing resulted in a denial last month by the Supreme Court of Canada of leave to appeal a pre-trial decision by a New Brunswick court that put limits on the remedies the Wolastoqey can attempt to claim.

For a host of reasons, some specific to the facts of their particular lawsuit, the Wolastoqey are now stuck with a claim for monetary compensation when it comes to land they believe has unjustly fallen into private hands — they’re not getting the land itself back.

The reporting on this has been all over the place, claiming everything from total victory for private property rights to no serious change to the status quo. Reading it, one gets the sense of intrepid wire-service reporters from countries without naturally-occurring ice valiantly attempting to describe a hockey game to their editors back home.

Let me take my best shot at explaining the current state of play when it comes to Indigenous land claims.

First, is the Supreme Court denying leave to appeal the same thing as the Supreme Court making a decision?

It all depends on the wording. Sometimes the denial of leave to appeal will include a phrase like, “for the reasons given by the trial judge, leave is denied.” That’s an endorsement, and it turns the ruling of Justice Knowitall of North Nowhere into a Supreme Court of Canada decision that binds the whole country.

Often, though, as the Wolastoqey decision, the Supreme Court simply says “leave denied.” That’s harder to parse. You can’t assume that the Supreme Court is in complete agreement with Justice Drapeau of the New Brunswick Court of Appeal. It would be especially foolish to quote any particular line from the Wolastoqey decision as if it had received a stamp of approval from the SCC.

But what you can assume is that the Supreme Court believes Drapeau got it close enough to correct on a point of law of incredible national interest that it decided it wasn’t worth meddling.

The denial of leave to appeal is therefore significant, but only a general indication of what to expect when the issues at stake eventually make their way into an SCC decision. The Cowichan decision out of B.C., which made waves last year with a declaration of aboriginal title to private property and government property alike along Richmond’s south shore, remains a prime candidate to receive just such a written decision.

Here’s the second question making the rounds: does the Wolastoqey decision contradict the Cowichan decision? Should we expect after Wolastoqey that Cowichan will be shot down in flames by the SCC?

Although most reports cast the two decisions as taking rival positions, I get the sense that once you look past the technicalities to the practicalities, the two cases have staked out a broadly similar playbook for handling Indigenous land claims.

Let me explain.

There are three interlocking logistical problems with Indigenous land claims that, collectively, give trial judges fits.

The first problem is that we’re talking about dozens of witnesses and linear shelf feet of historical documents. The Cowichan decision handed down last August took almost two years to write, after a trial that lasted four years — and that was without allowing hundreds of pissed-off private property owners to intervene.

On that note, the second problem is that everyone wants a say. In the platonic ideal of a lawsuit, anyone likely to be impacted by its outcome is entitled to be a party to it, but there’s a push and pull on this point when it comes to Indigenous land claims. The impact to private landowners is potentially severe, but a litigation-clogging tsunami of individuals and businesses can reasonably claim to deserve standing.

Adding too many parties to a case that’s already moving at a glacial pace can render a trial functionally impossible, and the courts do care (believe it or not) about ensuring that litigation occurs at the speed of relevance.

The third problem is that even if the parties try to solve the first two problems by only arguing about certain parts of the disputed land, i.e. the bits that don’t belong to private property owners, it’s tough to avoid writing anything in the ruling that might spook the horses.

For example, let’s say a tribe tries to avoid messing with local homeowners by just claiming the north half of a valley, all of which is government land. But, the historical evidence the tribe introduces to claim the north half of the valley conclusively implies that the tribe was unjustly denied title to the entire valley 200 years ago. How does the judge write that up, in the course of giving the tribe only the north half of the valley, without panicking the homeowners living in the south half about what might be coming next?

These were the problems facing the judges in both the Cowichan and Wolastoqey lawsuits, and there were no obvious solutions.

In both lawsuits, the tribe in question didn’t focus its ire on private landowners. The Cowichan made it abundantly clear that they weren’t seeking the return of land held in private hands, just the land currently owned by the government. Similarly, the Wolastoqey dropped their claim against timber interests, railroad companies, and the Irvings, stating that they didn’t want the land owned by those industrial titleholders back after all, just compensation from the government for unjustly giving it away in the first place.

This was not a selfless favour to private landowners. Instead, it was likely a recognition on the part of both tribes of two strategic factors.

First, demanding the mass seizure of private land from homeowners and business interests would be pulling the pin out of a political hand grenade. It’s the sort of thing that gets the constitution rewritten. The court in Wolastoqey described it as the “death knell of reconciliation.”

Second, going after private landowners is a very difficult legal case for First Nations to make, even without judicial concerns about the impact on reconciliation.

To understand why, imagine that while you are on vacation, the Hamburglar steals your house.

He doesn’t fly off in a helicopter with your split-level dangling from a chain. Instead, demonstrating the fiendish criminal ingenuity that first brought him to the attention of the McDonald’s marketing department, the Hamburglar claims to be the owner, sells it to a very nice couple who are none the wiser, and pockets the cash.

You come home with a Mazatlán sunburn to find the new buyers making grilled cheese sandwiches in what they genuinely believe to be their kitchen.

Do you get your house back?

In many Canadian provinces, the answer is no: the moment title to the land transfers to the new buyers, it’s their property forever. Your remedy is to hunt down the Hamburglar (if you can) and attempt to beat the money out of him (if he’s still got it).

The Canadian legal system isn’t cold-hearted, but its highest priority is to maintain the integrity of our land registration system. If the government transfers title from one person to another, no matter how erroneously, that’s the final word on it.

The very nice couple eating lunch in what used to be your kitchen are referred to by their very expensive lawyers as “bona fide purchasers for value without notice,” which I will saw down to the Dahl-esque acronym “BFP” to save on pixels. They had no idea they weren’t dealing with the real owner of the property, they paid market price for your house, and in return they received “fee simple” title to the land: a government declaration that it was theirs, lock, stock and barrel.

Canada’s real-estate transfer system is structured to prevent that nightmare scenario from occurring. Most people, most of the time, don’t need to worry.

That is, unless you find out that the starter house you bought (or, to be inclusive of Canadians of all walks of life, the lumber mill you financed) is potentially sitting on stolen native land.

The full story behind the Cowichan litigation is fascinating, but the short version is good enough to illustrate who realistically has to worry about the solidity of their fee simple title and who doesn’t.

Back when B.C. was a British colony, a Victoria bureaucrat deliberately disobeyed instructions from the governor to reserve for the Cowichan tribe a chunk of land in the Fraser delta that contained their summer village. Instead, he secretly bought that land for himself. The bureaucrat in question should have been buried under the jail, but he was influential in the fledgling colony, corruption was rampant, and everyone chose to turn a deaf ear to the continuing protests of the Cowichan that they had been defrauded of their land.

Over the course of the next century and a half, some of that land was sold to private buyers, who in turn sold it to other private buyers. Other parts of that land became the property of the B.C. government when the private owners defaulted on their taxes.

Now, here’s the critical part.

The trial judge determined that at the time the government came into possession of its landholdings in the area, it damn well knew that the land had been fraudulently transferred out from under the Cowichan.

While Cowichan requests to the government since the 19^th century for the return of their land had been futile (until now), those requests had been noisy and consistent. Although the B.C. government had fee simple title to the land, it lacked the ingredient that makes fee simple title an ironclad guarantee of ownership: the government wasn’t a BFP. It knew at the time of the land transfer that it was receiving the proceeds of a crime — one committed by a government employee in the course of his duties, no less.

Private landowners, on the other hand, had no clue about any of this. They’ve been buying and selling Cowichan land over the past 150 years unaware that the properties were situated on the legal equivalent of Mount Vesuvius. That very obliviousness will likely turn out to be what saves their butts: they’re BFPs.

So, when Justice Young of the British Columbia Supreme Court held that the government’s fee simple title was invalid and defective, she took pains to point out that this had no implication regarding what would happen if the Cowichan ever came after the fee simple title of private property owners.

Her attempted reassurance had approximately zero effect on the voting public’s anxiety levels (nor those of the money markets), due to Logistical Problem #3. You can’t conclude that a corrupt bureaucrat screwed the Cowichan out of their land without coming to the incidental conclusion that the land was, at one time, rightfully the Cowichan’s — even if your ruling only hands the Cowichan the keys to the land currently owned by the government.

Justice Young tried to duct tape the resulting mess together by declaring that it was possible for aboriginal title to exist simultaneously on the same land as the private property owners’ fee simple title. Nobody really seems to have bought it.

Justice Drapeau in New Brunswick took a slightly different approach.

As with the Cowichan case, he’s on the same page as Justice Young that it’s not realistic to allow private property owners to become parties to lawsuits of this nature, which are battles between First Nations and the government in which neither side wants to involve anybody else.

Not only does it burden the lawsuit with too many parties to function, but Drapeau pointed out that when it comes to arguing about historical title disputes dating back prior to the invention of the electric street light, private property owners have nothing of value to add. If your defence is that you didn’t know about a property’s disputed history when you bought it, what could you possibly contribute to an argument about the details of that history except wordless shrieks of panic?

This painted Drapeau into the same corner as Young, though. It’s functionally impossible to include private landowners in a lawsuit about whether the government screwed over an Indigenous group 200 years ago — but, it’s also impossible to decide that lawsuit without ruling on who truly owns the land, which risks prejudicing private landowners if the local First Nation changes its mind and decides to sue private landowners to get its land back down the road.

Much like Justice Young, Justice Drapeau broke out the duct tape, but he patched the hole differently. He disagreed with her that it was possible for aboriginal title and fee simple title to coexist. Instead, he reasoned that there’s a distinction between a finding of aboriginal title and a declaration of aboriginal title.

If all a First Nation wants is financial compensation from the government for land now in the hands of a private landowner, a “finding” of aboriginal title is good enough, wrote Drapeau. Such a finding doesn’t impact the private landowner’s fee simple title, and the landowner doesn’t need to be a party to the lawsuit.

However, if a First Nation does want to actually reclaim land from a private homeowner, then the court needs to make a “declaration” of aboriginal title, the landowner needs to be part of the lawsuit, and if the landowner loses, there goes their fee simple title.

You may be asking what the difference is between a finding and a declaration. To be blunt, I don’t think there is one.

Law nerds will tell you that “findings” are judicial conclusions about which alleged facts are true, as well as conclusions about the correct application of the law to those facts. When a judge makes one of those findings of fact or law part of the remedy they arrive at to settle a dispute, it becomes a “declaration.”

If that sounds to you like a distinction without much of a difference, I agree. The idea that a judge can “find” as a fact in a written judgment, published for the world to read, that Alice stole Bob’s motorcycle without having meaningfully “declared” in any way that Alice stole Bob’s motorcycle requires either a degree of insanity, or the working of a thoughtful, highly-educated mind — one extremely keen to find a way to publicly announce that something is true as a necessary interim step toward a different objective, while preventing that announcement from resulting in any of the collateral consequences that would normally flow from it.

Under the klieg lights of common sense, this finding/declaration distinction appears to amount to a suggestion by the New Brunswick Court of Appeal that trial courts can sidestep the brain-frying logistical issues involved in litigating Indigenous land claims by adding or subtracting a certain amount of oomph when they reach certain factual conclusions, à la Michael Scott declaring bankruptcy.

Here’s the thing about deftly-applied judicial duct tape, though: if it satisfactorily solves a problem, everyone just pretends the tape was always there and that there is no hole beneath it. And in this case, by denying leave to appeal, the Supreme Court appears to be backing Drapeau’s fix.

If that’s the correct read, which we’ll find out for certain when the Supreme Court actually writes an opinion on this subject — which may be years away — where does that leave private landowners?

Right back where they started before Wolastoqey and before Cowichan. They’ll still be recipients of the mushroom treatment during Indigenous land claims litigation, but going forward, their ignorance can be a little more blissful: unless they’re given direct notice that they need to show up in court to fight for their land, nothing a court does in their absence will affect the sanctity of their property titles.

Probably.

---

The Line is entirely reader and advertiser funded. No federal subsidies, no bailouts. If you value our work, please consider supporting us by subscribing or making a donation. Donations are not subscriptions and do not unlock paywalled content, but they help keep The Line independent

---

To contact The Line with a general inquiry or comment, please email info@readtheline.ca. For other ways to connect with us or to follow us on social media, please see our LinkTree.