Thank you, Clarke & The Line. You have succinctly summarized the ambiguity created & inherent risks associated with allowing the courts to manage an issue that requires a political solution.
It's funny how so many people are saying that the uncertainty of secession will be bad for the Alberta economy, but we are all pretending that the uncertainty over whether property rights even exist in Canada doesn't justify any radical action.
By radical action I mean defining aboriginal title in parliament and using Constitution Act 1867 sec. 99 as needed to get it through the Supreme Court. Or maybe secession for a province and a new legal order that secures property rights.
A clever ambiguous bodge that kicks the problem down the road isn't good enough.
99 (1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.
The justices should quietly be informed that, once parliament decides on a law defining aboriginal title (including compensation levels, so a judge can't decide that the NB govt must pay the band the total value of all land in NB), as many judges will be removed as needed to find the law constitutional.
If the judges are so pig headed that they want to destroy the country by ending private land ownership, it makes perfect sense to end judicial independence.
If there is a showdown between Parliament and the judges, Parliament should win.
Yes, Parliament can pass any law it chooses to. That's what Parliamentary supremacy just is. The Courts interpret the Constitution as meaning that they get to rule on whether any given law that Parliament passed is "constitutional", and they may discover rights in the Constitution that never existed, and force Parliament to amend laws accordingly (like the murder laws to allow euthanasia) but this is a fundamentally flawed interpretation. The Courts should be only allowed to rule on whether a case was properly decided according to the relevant law that Parliament passed. They should not be able to rule on whether the law should have been passed at all. That's Parliament's job, to repeal a bad law.
The connection to Alberta independence should be obvious: Canada may choose to self destruct rather than ending judicial independence. Not every province may want to go down with the ship.
"(P)otentially sitting on stolen native land," is where this whole gong show begins. 'Stolen' indicates prior ownership. And even among the tribes prior to European contact, we know perfectly well no such ownership existed. 'Use' existed to greater and lesser extents through time by various 'tribes'. But not 'ownership'. This foreign concept was introduced by European contact to a widely dispersed and historically transient, competitive, and conflicted native populations diverse among themselves (how many lay claim to being 'the people'!). Under this use rubric, European expansion was simply one or two more 'tribes' 'using' the land. Ownership, however, comes about by declared and enforced sovereignty that can defend property rights, the very rights being 'negotiated' away from the sovereign state in the name of 'reconciliation'. There is no reconciling ownership, any more than one can reconcile left with right, up with down. Playing linguistic games to make such compromises legally possible is an exercise of counting how many angels are on the head of a pin; agreement among the counters doesn't make it so. Disassembling sovereignty in the name of establishing ownership is driving the bus front and back in opposite directions. It can only end badly for everyone onboard.
I'm willing to take evidence of exclusive control, where other tribes weren't allowed to trespass, as equivalent to ownership. For most bands, these areas would exist but be small.
This is exactly the sort of evidence a trial judge looks for when deciding whether an aboriginal title claim to a piece of land is justifiable. You may find the Cowichan decision interesting reading - it spends dozens of pages sifting through testimony and historical records on the precise question of capability to exclude.
By no coincidence, the tribes with the most expansive land claims today tended to be large and militarily capable when Canada was settled. The Cowichan dominated the south fork of the Fraser River, and the Wolastoqey fought six wars against the British.
Er, speaking of “playing linguistic games,” even if we accept the legitimacy of the use/ownership distinction you point out here, the “foreign concept” introduced by Europeans brought de facto ownership into being for native peoples the instant they became party to land transactions with the foreigners. Giving something to native peoples in exchange for land is an implicit acknowledgement by the foreigners that those same native peoples had a prior entitlement to the land—something tangible and substantive to trade—whether they called this entitlement 'ownership,' 'use,' something else, or nothing at all. Throughout prehistory and history even nomadic peoples have been territorial, and inclined to evict intruders from territories deemed to belong to one group and not another. Europeans moving in on North American territories traditionally occupied by native tribes would have understood this perfectly well. Their concept of 'ownership' was simply a formalization of a 'use entitlement' intelligible enough to the tribes that they realized negotiating and signing treaties with the interlopers had suddenly become a new requirement for entitlement defence.
Exclusivity is the key. Did the tribes have defined territories from which they effectively excluded others in practice? No doubt they did in places, but a band of 600 people is not exercising that kind of control over 600 square kilometres.
Doubtless the boundaries of the 'exclusivity zones' were more fuzzily defined than today's property line between you and your neighbour, but that's hardly the point. The kinds of disputes that typically arise over ownership would be virtually nonexistent if ownership didn't confer a right to 'use,' or some equivalent benefit, whether what's owned is a territory, a car, a movie ticket, a club membership, your books, your clothes or your bank account. Three hundred years ago, Europeans and indigenous peoples alike understood that what was at stake in 'land ownership' negotiations was who would be entitled to use the land, for whatever purpose.
So is the 'exclusivity' of south central Ontario 'owned' by the slash, burn, and move Huronia or the larger group known as the Wendat populated in part by a large contingent of Iroquoians and Wenro? Which of these tribal groups today should now 'own' the area if we select THIS population as the starting point of occupation from time immemorial? Did that 'exclusivity' you presume exists/existed change by these fine folk being nearly exterminated by the invading Haudenosaunee, a 'tribe' you know today as the Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora, all of which now have reserve land under these various and supposedly 'distinct' names? You know... from having been on the land since time immemorial, donchaknow. Or perhaps the 'exclusivity zone' should focus more on the the latest tribal invader who 'depopulated' the same area. Such a nice and gentle term for mass murdering. But what's a bit of that between tribal 'friends'? Know the name of that tribe? (Iroquois). The 'exclusivity' on tap based on belief of tribes living someplace since time immemorial (hence the reason for the term 'First Nations' and indigenous' as if part of the land but applied only to the latest land users who are native born Indians) is just that: a belief not rooted in fact.
As I said, the difference between use and ownership matters greatly when it comes to awarding sovereignty to specific tribal Stone Age blood ties into perpetuity, and thinking well of one's self as a kind and thoughtful 'patriot' of the national project while busy dismantling it in the name of reconciliation is a fine example of suicidal empathy.
(?) Not sure why you're asking me all these questions, or why you seem to believe the point raised in my response to your claim imposes on anyone drawing it to your attention a responsibility to answer them. What I've pointed out—that two parties can't negotiate a barter agreement between them without implicitly acknowledging that each side has something tangible to barter—seems to me completely non-controversial.
Not sure? Seriously? I responded to you because you equated my point that believing in the term 'indigenous' as if a cohesive whole is a linguistic sleight of hand that is not true in reality - with a similar linguistic sleight of hand I raised between the essential terms 'used' and 'owned'. ("Er, speaking of “playing linguistic games,” even if we accept the legitimacy of the use/ownership distinction you point out here, the “foreign concept” introduced by Europeans (edit: ownership) brought de facto ownership into being for native peoples the instant they became party to land transactions with the foreigners.")
Notice you assumed a cohesive 'they' (a belief that is synonymous in your mind I must presume with a cohesive 'indigenous' that I argue is not real but a misguided belief held by many, which highlights the level of belief over reality being used here and in our courts) and then argued it was Europeans who brought this switch into being and therefore awarded prior ownership to the local tribal representative. As anyone who has studies treaties knows, the conditions of use were central to these agreements not to establish ownership but to avoid conflict and competition with some tribes and to the very great benefit for other tribes that agreed.
The amount of belief necessary to alter reality to such a level as to support this transfer of sovereignty today as if it existed prior to contact I point out destroys any possibility of unified nationalism with ownership by all citizens. And so those who continue to support this divisive compendium of false beliefs are making the problem of national disintegration worse. Not better. Slapping a label on this travesty of foolishness called 'reconciliation' reconciles nothing exactly nothing and is just one more in a growing list of linguistic abuses to justify what amounts to national suicidal empathy. To quote that famous character from Forest Gump, "Stupid is as stupid does." And it doesn't get much stupider than giving away sovereignty to appease a fiction.
Good point, but there is an arguable difference between use and ownership: I park my second vehicle on the street in front of my house, generally using it to the exclusion of the other neighbors, but I do not have title to that spot.
No one is contesting the distinction between use and ownership, but surely the more relevant analogy here would be your reaction if your neighbour suddenly decided he was entitled to share your use of your living room.
Interesting analogy. I own my house and living room so can use whatever force is required to keep you out. I don’t own the street it is held by some collective entity or open to anyone by popular custom so I can’t keep you out legally. But if you block the street and try to keep me or anyone else from using it where does that fit? If I need (make that “want”) to go on the street to bring food to my family (or for any or indeed no reason) can i use whatever force is required to remove you?
People can't block your driveway, but that's another matter. Nobody parks in the street in the neighbourhood where I live: every house has its own driveway (usually with at least two vehicles in it). One sees cars parked in front of houses on residential streets closer to the downtown core, and I guess there's probably some competition for spots. My guess is that neighbours wouldn't normally park their cars in front each other's houses, whenever this can be avoided; but that's more a matter of courtesy than of asserting a territorial right or entitlement. Strolling into another home owner's driveway and helping yourself whatever he may have left there, on the other hand, would give rise to an objection that could be backed up legally, if necessary. This is all pretty straightforward, yes?
Thanks. I was thinking of someone blocking your driveway in this instance. Yep Discourtesy is not something you can do anything about at least under property ownership rules.
I’m thinking of things like blockading highways or railways or putting wires across river access to public lakes to stop traffic.
The desire for reconciliation between Canadians and First Nations will remain unfulfilled as long as it remains undefined. Reconciliation has become an exercise in grievance and reparations. An albatross that is hung around the necks of future generations whose agency is hijacked by those who see value in looking backwards instead of forwards.
This is a prescient and fascinating article. Best in depth analysis I’ve read of the issue to date.
One thing I’m puzzled by is the seeming lack of judgement by the judges making these rulings on the remedy. In the case of the hamburgler, you could sue him for the value of your home that he fraudulently sold. Now, it wouldn’t be the value of the home after the new owners added a 2nd floor addition, hot tub, and garage. It would be for the fair market value of the home at the time. Why is this assessment not being made (I don’t mean the appraisal of value, but the principle applied) ie. Shouldn’t the remedy proposed for the Cowichen be
A) return of all affected lands currently owned by the BC government which were fraudulently procured
B) Compensation for the lands taken and sold by BC, calculated at the value of the land at the time and condition they were taken and then adjusted for inflation?
Seems to me the most logical and reasonable solution no? Could have all ended there.
In the case of the Cowichan litigation, the Cowichan actually did not ask for either the return of lands now privately held, *or* compensation for that loss. They avoided the whole issue and focused on return of government-held lands.
If the Wolastoqey reasoning holds up, then your suggested A + B solution of the Cowichan land claims is probably exactly what's going to happen.
I dunno. I don't like the idea of the government giving back to our enemies millions of acres of Crown land that is held for all Canadians to benefit from, including being deeded out to future private fee-simple landowners.
And if Chris's B) applies so that the government compensates the Indians for the land taken, why would the government then need to return the land as well?
At some point you have to say, "OK, even if a government agent did steal your land, you the Indians have enjoyed much greater material prosperity having lost it to people who could develop it than if those Crown agents had never arrived in BC. The labour on that land produced the taxes that you sustain yourselves with, and those of you who work work largely in businesses started by people who could use that land more productively than you could. So we are square. No money, no land transfer."
Not sure I like the characterization of indigenous Canadians as enemies at all… full stop. Beyond that, we have to decide who we want to be. Canada made treaties with our indigenous people instead of waging war. It wasn’t like it was a great freaking deal for them. They certainly made a deal based on the realpolitik power dynamic at the time. We’re also not taking about frivolous claims here. The Cowichan clearly had that land, sounds like they proved the fraud that happened at the time (which is crazy to be able achieve considering the length of time). Most won’t be able to meet that bar even if it was true. Honestly, the value of the land they are compensated for won’t be much - at the time it was generally unserviced bush. The land given back? Well things have changed.. and let’s be honest. Who is better utilizing and developing the land for Canadians at this point? I’d rather deal with most indigenous bands rather than the incompetent fools currently running our government’s and their bureaucracy.
Call them adversaries, then. Once you go to Court or engage in civil disobedience you're not friends anymore. They want something from us that we aren't willing to give them. That's what Court proceedings resolve, to identify a winner and a loser, who has to cough up. The very fact that they have to take us to Court or blockade our railway tracks and highways means we aren't serious about their vision of reconciliation. If we were, we'd just accede to all their demands and we'd get to reconciliation -- their version -- that much faster. But we don't. Why is that?
You are heart-breakingly naive if you think that indigenous bands rather than fee-simple private property owners are better at making Canada prosperous for all Canadians....which provides the tax revenue for indigenous handouts and indulgences. And no, it's not the government and its bureaucracy that makes Canada prosperous, *except* insofar as it guarantees private property and the rule of law, the only legitimate function of the state.
The irony of tribes that warred and took land from each other without compensation insisting on compensation for lands taken seems rich... however, promises made, if they can be proven, are a matter of honour.
Interestingly, that irony was raised with the judge in the Cowichan case. The judge pointed out that if we're assessing whether a tribe had exclusive possession by whether they demonstrated the ability to violently control territory, we can hardly deny them title based on abhorrence of that same violence.
I agree with you that it's ultimately a matter of honour. Our word should mean something no matter who we give it to, including the local tough guys who could have made the settlement of Canada much slower and more painful.
Oh my, this is complicated. Your article is helpful but concerning. Would it be helpful to know how many Indigenous persons would be/ could be helped and how current home and land owners would be/ could be harmed? Also I'm shocked that if someone sells your house while you are away, the new owners can keep it?!!
"If someone sells your house out from under you, the new owners get to keep it" is one of the shocks routinely experienced by law students. The reason you never actually hear about this happening is because we have a well-designed land transfer system and it's extremely difficult in practice to pull off that sort of theft.
What's a little more common, and equally disturbing, is other items of property being stolen and resold, like money. Consider for example a 2017 case out of Ontario, Arrow ECS Norway AS v. John Doe, 2017 ONCA 664, in which a Canadian man was defrauded out of $23 million.
The fraudster swapped $400k of that money in a currency trade with a businessman who lived overseas but did business in Canada (so the fraudster received $400k worth of e.g. Chinese yuan, and the businessman received $400k CDN). The court ruled that the businessman was allowed to keep the $400k because he was a BFP - he didn't know the Canadian currency was the proceeds of crime, and he traded a fair amount of (e.g.) Chinese yuan for it.
It's awful, but the logic is sound: it confines the damage to the original victim instead of creating multiple other victims and reducing overall trust among innocent people in their ability to rely on normal commercial transactions.
So, according to that principle, we can reasonably expect that if someone bought property for good money not knowing it was originally stolen native land, the Indigenous tribe harmed by the theft has to go after the original thief for compensation (e.g. the government), they can't go after the current private property owner to get their land back.
Thank you. As you explain it, it now seems clear - but still rather nasty to the person who had the property stolen. It seems current property owners in the land disputes are pretty concerned, even though the property they bought had most likely changed hands many many times between when the government broke the treaty and when they bought it.
I tend to think that current property owners are too worried - that they're safer than they think, because they're BFPs and because the principles of reconciliation favour letting them keep their land - but I respect that simply not knowing produces a lot of genuine distress.
So if land owners are bona fide purchasers without notice and therefore still own their land, are they free to sell it? Isn’t the subsequent buyer someone who HAS notice (given that it is now public knowledge that the indigenous communities were fraudulently deprived of their land)?
This is a legitimate question, because I’m not sure about the intricacies of the land registry system.
This is the clearest explanation I have read of the issue.
Do any time limitations exist? How can governments estimate their potential exposure and contain additional exposure if they don't know what claims might be lurking? If limitations don't exist, could government force all claims to be filed by a date in order to cap the uncertainty? I know, such a move would likley lead to a flood of dubious claims.
Also, do you know much about Australian law? I lived there for 10 years and my (mis) understanding is that no treaties were signed or thought to be required as the indigenous people had no concept of ownership, aka Terra Nullius. This was challenged in the 90s, but nothing seems to have come from it.
Question - aboriginal title is not normal title. It is held for future generations. What impact does this concept have on any current promise by a tribe that they won’t seek return of private land? Seems to me that promise can’t bind future generations if they want to proceed against the land sometime in the future unless they expressly relinquish any claims to privately owned land in a manner that is legally approved as being consistent with aboriginal title.
It seems that Mr. Ries contradicts himself. At one point in his article, he states that current private owners of “Cowichan” land have nothing to worry about. They are “BFP” owners in that they could not have known that the property was stolen from the original owners. Later in the article, he implies that such private owners are in fact not secure in their ownership. Which is it?
Thank you, Clarke & The Line. You have succinctly summarized the ambiguity created & inherent risks associated with allowing the courts to manage an issue that requires a political solution.
Treaties are political solutions; that were not enforced. That leads to the judicial solutions - because the political solutions were not enforced
It's funny how so many people are saying that the uncertainty of secession will be bad for the Alberta economy, but we are all pretending that the uncertainty over whether property rights even exist in Canada doesn't justify any radical action.
By radical action I mean defining aboriginal title in parliament and using Constitution Act 1867 sec. 99 as needed to get it through the Supreme Court. Or maybe secession for a province and a new legal order that secures property rights.
A clever ambiguous bodge that kicks the problem down the road isn't good enough.
Could you expand on the use of Section 99 in this case, please?
Parliament can remove judges at any time.
99 (1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.
The justices should quietly be informed that, once parliament decides on a law defining aboriginal title (including compensation levels, so a judge can't decide that the NB govt must pay the band the total value of all land in NB), as many judges will be removed as needed to find the law constitutional.
As I said, radical. But necessary.
so... your solution is to end judicial independence? shall we make the federal banks a political animal as well?
I can't connect the AB independence "movement" to this issue without a lot of powerful drugs...
If the judges are so pig headed that they want to destroy the country by ending private land ownership, it makes perfect sense to end judicial independence.
If there is a showdown between Parliament and the judges, Parliament should win.
Yes, Parliament can pass any law it chooses to. That's what Parliamentary supremacy just is. The Courts interpret the Constitution as meaning that they get to rule on whether any given law that Parliament passed is "constitutional", and they may discover rights in the Constitution that never existed, and force Parliament to amend laws accordingly (like the murder laws to allow euthanasia) but this is a fundamentally flawed interpretation. The Courts should be only allowed to rule on whether a case was properly decided according to the relevant law that Parliament passed. They should not be able to rule on whether the law should have been passed at all. That's Parliament's job, to repeal a bad law.
The connection to Alberta independence should be obvious: Canada may choose to self destruct rather than ending judicial independence. Not every province may want to go down with the ship.
so... it sounds like an independent AB would not be a democracy then. What form of governance did you have in mind?
It would be a democracy, not a judge-ocracy like Canada. (Or, more correctly, an oligarchy)
"(P)otentially sitting on stolen native land," is where this whole gong show begins. 'Stolen' indicates prior ownership. And even among the tribes prior to European contact, we know perfectly well no such ownership existed. 'Use' existed to greater and lesser extents through time by various 'tribes'. But not 'ownership'. This foreign concept was introduced by European contact to a widely dispersed and historically transient, competitive, and conflicted native populations diverse among themselves (how many lay claim to being 'the people'!). Under this use rubric, European expansion was simply one or two more 'tribes' 'using' the land. Ownership, however, comes about by declared and enforced sovereignty that can defend property rights, the very rights being 'negotiated' away from the sovereign state in the name of 'reconciliation'. There is no reconciling ownership, any more than one can reconcile left with right, up with down. Playing linguistic games to make such compromises legally possible is an exercise of counting how many angels are on the head of a pin; agreement among the counters doesn't make it so. Disassembling sovereignty in the name of establishing ownership is driving the bus front and back in opposite directions. It can only end badly for everyone onboard.
I'm willing to take evidence of exclusive control, where other tribes weren't allowed to trespass, as equivalent to ownership. For most bands, these areas would exist but be small.
This is exactly the sort of evidence a trial judge looks for when deciding whether an aboriginal title claim to a piece of land is justifiable. You may find the Cowichan decision interesting reading - it spends dozens of pages sifting through testimony and historical records on the precise question of capability to exclude.
By no coincidence, the tribes with the most expansive land claims today tended to be large and militarily capable when Canada was settled. The Cowichan dominated the south fork of the Fraser River, and the Wolastoqey fought six wars against the British.
Er, speaking of “playing linguistic games,” even if we accept the legitimacy of the use/ownership distinction you point out here, the “foreign concept” introduced by Europeans brought de facto ownership into being for native peoples the instant they became party to land transactions with the foreigners. Giving something to native peoples in exchange for land is an implicit acknowledgement by the foreigners that those same native peoples had a prior entitlement to the land—something tangible and substantive to trade—whether they called this entitlement 'ownership,' 'use,' something else, or nothing at all. Throughout prehistory and history even nomadic peoples have been territorial, and inclined to evict intruders from territories deemed to belong to one group and not another. Europeans moving in on North American territories traditionally occupied by native tribes would have understood this perfectly well. Their concept of 'ownership' was simply a formalization of a 'use entitlement' intelligible enough to the tribes that they realized negotiating and signing treaties with the interlopers had suddenly become a new requirement for entitlement defence.
Exclusivity is the key. Did the tribes have defined territories from which they effectively excluded others in practice? No doubt they did in places, but a band of 600 people is not exercising that kind of control over 600 square kilometres.
Doubtless the boundaries of the 'exclusivity zones' were more fuzzily defined than today's property line between you and your neighbour, but that's hardly the point. The kinds of disputes that typically arise over ownership would be virtually nonexistent if ownership didn't confer a right to 'use,' or some equivalent benefit, whether what's owned is a territory, a car, a movie ticket, a club membership, your books, your clothes or your bank account. Three hundred years ago, Europeans and indigenous peoples alike understood that what was at stake in 'land ownership' negotiations was who would be entitled to use the land, for whatever purpose.
So is the 'exclusivity' of south central Ontario 'owned' by the slash, burn, and move Huronia or the larger group known as the Wendat populated in part by a large contingent of Iroquoians and Wenro? Which of these tribal groups today should now 'own' the area if we select THIS population as the starting point of occupation from time immemorial? Did that 'exclusivity' you presume exists/existed change by these fine folk being nearly exterminated by the invading Haudenosaunee, a 'tribe' you know today as the Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora, all of which now have reserve land under these various and supposedly 'distinct' names? You know... from having been on the land since time immemorial, donchaknow. Or perhaps the 'exclusivity zone' should focus more on the the latest tribal invader who 'depopulated' the same area. Such a nice and gentle term for mass murdering. But what's a bit of that between tribal 'friends'? Know the name of that tribe? (Iroquois). The 'exclusivity' on tap based on belief of tribes living someplace since time immemorial (hence the reason for the term 'First Nations' and indigenous' as if part of the land but applied only to the latest land users who are native born Indians) is just that: a belief not rooted in fact.
As I said, the difference between use and ownership matters greatly when it comes to awarding sovereignty to specific tribal Stone Age blood ties into perpetuity, and thinking well of one's self as a kind and thoughtful 'patriot' of the national project while busy dismantling it in the name of reconciliation is a fine example of suicidal empathy.
(?) Not sure why you're asking me all these questions, or why you seem to believe the point raised in my response to your claim imposes on anyone drawing it to your attention a responsibility to answer them. What I've pointed out—that two parties can't negotiate a barter agreement between them without implicitly acknowledging that each side has something tangible to barter—seems to me completely non-controversial.
Not sure? Seriously? I responded to you because you equated my point that believing in the term 'indigenous' as if a cohesive whole is a linguistic sleight of hand that is not true in reality - with a similar linguistic sleight of hand I raised between the essential terms 'used' and 'owned'. ("Er, speaking of “playing linguistic games,” even if we accept the legitimacy of the use/ownership distinction you point out here, the “foreign concept” introduced by Europeans (edit: ownership) brought de facto ownership into being for native peoples the instant they became party to land transactions with the foreigners.")
Notice you assumed a cohesive 'they' (a belief that is synonymous in your mind I must presume with a cohesive 'indigenous' that I argue is not real but a misguided belief held by many, which highlights the level of belief over reality being used here and in our courts) and then argued it was Europeans who brought this switch into being and therefore awarded prior ownership to the local tribal representative. As anyone who has studies treaties knows, the conditions of use were central to these agreements not to establish ownership but to avoid conflict and competition with some tribes and to the very great benefit for other tribes that agreed.
The amount of belief necessary to alter reality to such a level as to support this transfer of sovereignty today as if it existed prior to contact I point out destroys any possibility of unified nationalism with ownership by all citizens. And so those who continue to support this divisive compendium of false beliefs are making the problem of national disintegration worse. Not better. Slapping a label on this travesty of foolishness called 'reconciliation' reconciles nothing exactly nothing and is just one more in a growing list of linguistic abuses to justify what amounts to national suicidal empathy. To quote that famous character from Forest Gump, "Stupid is as stupid does." And it doesn't get much stupider than giving away sovereignty to appease a fiction.
I am suggesting that we should not judicially recognize meaningful aboriginal title for anything other than real, solid, exclusion.
I'm just glad I'm not a judge.
Good point, but there is an arguable difference between use and ownership: I park my second vehicle on the street in front of my house, generally using it to the exclusion of the other neighbors, but I do not have title to that spot.
No one is contesting the distinction between use and ownership, but surely the more relevant analogy here would be your reaction if your neighbour suddenly decided he was entitled to share your use of your living room.
Interesting analogy. I own my house and living room so can use whatever force is required to keep you out. I don’t own the street it is held by some collective entity or open to anyone by popular custom so I can’t keep you out legally. But if you block the street and try to keep me or anyone else from using it where does that fit? If I need (make that “want”) to go on the street to bring food to my family (or for any or indeed no reason) can i use whatever force is required to remove you?
People can't block your driveway, but that's another matter. Nobody parks in the street in the neighbourhood where I live: every house has its own driveway (usually with at least two vehicles in it). One sees cars parked in front of houses on residential streets closer to the downtown core, and I guess there's probably some competition for spots. My guess is that neighbours wouldn't normally park their cars in front each other's houses, whenever this can be avoided; but that's more a matter of courtesy than of asserting a territorial right or entitlement. Strolling into another home owner's driveway and helping yourself whatever he may have left there, on the other hand, would give rise to an objection that could be backed up legally, if necessary. This is all pretty straightforward, yes?
Thanks. I was thinking of someone blocking your driveway in this instance. Yep Discourtesy is not something you can do anything about at least under property ownership rules.
I’m thinking of things like blockading highways or railways or putting wires across river access to public lakes to stop traffic.
The desire for reconciliation between Canadians and First Nations will remain unfulfilled as long as it remains undefined. Reconciliation has become an exercise in grievance and reparations. An albatross that is hung around the necks of future generations whose agency is hijacked by those who see value in looking backwards instead of forwards.
And the goalposts are always receding as you approach them.
Congratulations! You actually make this dog's breakfast comprehensible to a non-lawyer. Well done!
I am so happy to hear that, thank you!
This was a very good piece, thank you. And I certainly enjoyed the F-ing Hamburglar making a visit .That was awesome
This is a prescient and fascinating article. Best in depth analysis I’ve read of the issue to date.
One thing I’m puzzled by is the seeming lack of judgement by the judges making these rulings on the remedy. In the case of the hamburgler, you could sue him for the value of your home that he fraudulently sold. Now, it wouldn’t be the value of the home after the new owners added a 2nd floor addition, hot tub, and garage. It would be for the fair market value of the home at the time. Why is this assessment not being made (I don’t mean the appraisal of value, but the principle applied) ie. Shouldn’t the remedy proposed for the Cowichen be
A) return of all affected lands currently owned by the BC government which were fraudulently procured
B) Compensation for the lands taken and sold by BC, calculated at the value of the land at the time and condition they were taken and then adjusted for inflation?
Seems to me the most logical and reasonable solution no? Could have all ended there.
I'm very flattered, thank you!
In the case of the Cowichan litigation, the Cowichan actually did not ask for either the return of lands now privately held, *or* compensation for that loss. They avoided the whole issue and focused on return of government-held lands.
If the Wolastoqey reasoning holds up, then your suggested A + B solution of the Cowichan land claims is probably exactly what's going to happen.
I dunno. I don't like the idea of the government giving back to our enemies millions of acres of Crown land that is held for all Canadians to benefit from, including being deeded out to future private fee-simple landowners.
And if Chris's B) applies so that the government compensates the Indians for the land taken, why would the government then need to return the land as well?
At some point you have to say, "OK, even if a government agent did steal your land, you the Indians have enjoyed much greater material prosperity having lost it to people who could develop it than if those Crown agents had never arrived in BC. The labour on that land produced the taxes that you sustain yourselves with, and those of you who work work largely in businesses started by people who could use that land more productively than you could. So we are square. No money, no land transfer."
Not sure I like the characterization of indigenous Canadians as enemies at all… full stop. Beyond that, we have to decide who we want to be. Canada made treaties with our indigenous people instead of waging war. It wasn’t like it was a great freaking deal for them. They certainly made a deal based on the realpolitik power dynamic at the time. We’re also not taking about frivolous claims here. The Cowichan clearly had that land, sounds like they proved the fraud that happened at the time (which is crazy to be able achieve considering the length of time). Most won’t be able to meet that bar even if it was true. Honestly, the value of the land they are compensated for won’t be much - at the time it was generally unserviced bush. The land given back? Well things have changed.. and let’s be honest. Who is better utilizing and developing the land for Canadians at this point? I’d rather deal with most indigenous bands rather than the incompetent fools currently running our government’s and their bureaucracy.
Call them adversaries, then. Once you go to Court or engage in civil disobedience you're not friends anymore. They want something from us that we aren't willing to give them. That's what Court proceedings resolve, to identify a winner and a loser, who has to cough up. The very fact that they have to take us to Court or blockade our railway tracks and highways means we aren't serious about their vision of reconciliation. If we were, we'd just accede to all their demands and we'd get to reconciliation -- their version -- that much faster. But we don't. Why is that?
You are heart-breakingly naive if you think that indigenous bands rather than fee-simple private property owners are better at making Canada prosperous for all Canadians....which provides the tax revenue for indigenous handouts and indulgences. And no, it's not the government and its bureaucracy that makes Canada prosperous, *except* insofar as it guarantees private property and the rule of law, the only legitimate function of the state.
Enemies?!
The irony of tribes that warred and took land from each other without compensation insisting on compensation for lands taken seems rich... however, promises made, if they can be proven, are a matter of honour.
Interestingly, that irony was raised with the judge in the Cowichan case. The judge pointed out that if we're assessing whether a tribe had exclusive possession by whether they demonstrated the ability to violently control territory, we can hardly deny them title based on abhorrence of that same violence.
I agree with you that it's ultimately a matter of honour. Our word should mean something no matter who we give it to, including the local tough guys who could have made the settlement of Canada much slower and more painful.
Settled history and archeology mean nations argue that we treat them better than they treated nations, as a matter of national honour.
Oh my, this is complicated. Your article is helpful but concerning. Would it be helpful to know how many Indigenous persons would be/ could be helped and how current home and land owners would be/ could be harmed? Also I'm shocked that if someone sells your house while you are away, the new owners can keep it?!!
"If someone sells your house out from under you, the new owners get to keep it" is one of the shocks routinely experienced by law students. The reason you never actually hear about this happening is because we have a well-designed land transfer system and it's extremely difficult in practice to pull off that sort of theft.
What's a little more common, and equally disturbing, is other items of property being stolen and resold, like money. Consider for example a 2017 case out of Ontario, Arrow ECS Norway AS v. John Doe, 2017 ONCA 664, in which a Canadian man was defrauded out of $23 million.
The fraudster swapped $400k of that money in a currency trade with a businessman who lived overseas but did business in Canada (so the fraudster received $400k worth of e.g. Chinese yuan, and the businessman received $400k CDN). The court ruled that the businessman was allowed to keep the $400k because he was a BFP - he didn't know the Canadian currency was the proceeds of crime, and he traded a fair amount of (e.g.) Chinese yuan for it.
It's awful, but the logic is sound: it confines the damage to the original victim instead of creating multiple other victims and reducing overall trust among innocent people in their ability to rely on normal commercial transactions.
So, according to that principle, we can reasonably expect that if someone bought property for good money not knowing it was originally stolen native land, the Indigenous tribe harmed by the theft has to go after the original thief for compensation (e.g. the government), they can't go after the current private property owner to get their land back.
Thank you. As you explain it, it now seems clear - but still rather nasty to the person who had the property stolen. It seems current property owners in the land disputes are pretty concerned, even though the property they bought had most likely changed hands many many times between when the government broke the treaty and when they bought it.
I tend to think that current property owners are too worried - that they're safer than they think, because they're BFPs and because the principles of reconciliation favour letting them keep their land - but I respect that simply not knowing produces a lot of genuine distress.
For me, duty to consult requires a succinct definition.
Which all governments and all courts are loathe to provide.
You only know if the consultation was adequate when the band sues to stop your project and the Court hears what consultation you did provide.
This situation is ridiculous. Canada is no longer a serious country.
So if land owners are bona fide purchasers without notice and therefore still own their land, are they free to sell it? Isn’t the subsequent buyer someone who HAS notice (given that it is now public knowledge that the indigenous communities were fraudulently deprived of their land)?
This is a legitimate question, because I’m not sure about the intricacies of the land registry system.
Also, what is the summary of the Musqueam decision? It covers a much larger land mass
This is the clearest explanation I have read of the issue.
Do any time limitations exist? How can governments estimate their potential exposure and contain additional exposure if they don't know what claims might be lurking? If limitations don't exist, could government force all claims to be filed by a date in order to cap the uncertainty? I know, such a move would likley lead to a flood of dubious claims.
Also, do you know much about Australian law? I lived there for 10 years and my (mis) understanding is that no treaties were signed or thought to be required as the indigenous people had no concept of ownership, aka Terra Nullius. This was challenged in the 90s, but nothing seems to have come from it.
Also, have similar cases occurred in the US?
Question - aboriginal title is not normal title. It is held for future generations. What impact does this concept have on any current promise by a tribe that they won’t seek return of private land? Seems to me that promise can’t bind future generations if they want to proceed against the land sometime in the future unless they expressly relinquish any claims to privately owned land in a manner that is legally approved as being consistent with aboriginal title.
It seems that Mr. Ries contradicts himself. At one point in his article, he states that current private owners of “Cowichan” land have nothing to worry about. They are “BFP” owners in that they could not have known that the property was stolen from the original owners. Later in the article, he implies that such private owners are in fact not secure in their ownership. Which is it?