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.
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.
"(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.
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.
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.
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.
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.
I have an idea. How about Fed legislation to force the SCC to explain every decision including the ones for which they refuse to do so now. No excuse to leave everyone in the legal lurch for this. None whatsoever.
Wow! Now I’m worried!! hahahahaha! Thanks for this article,you did clear up a lot,sort of. lol. I see why private land owners are not participating. “We didn’t know!” is not a defense,or very good argument. Lac Ste Anne County,AB
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.
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
"(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.
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.
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.
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.
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.
In my example there is no suggestion of ownership on my part; there is definitely ownership of my living room in yours.
I have an idea. How about Fed legislation to force the SCC to explain every decision including the ones for which they refuse to do so now. No excuse to leave everyone in the legal lurch for this. None whatsoever.
Wow! Now I’m worried!! hahahahaha! Thanks for this article,you did clear up a lot,sort of. lol. I see why private land owners are not participating. “We didn’t know!” is not a defense,or very good argument. Lac Ste Anne County,AB
For me, duty to consult requires a succinct definition.
Strikes me that my dream — First Nations select an activist, independent GG from now on — would deftly solve this as well.
Effectively putting the ball into Indigenous Peoples’ hands as to how any future legislation to square this circle is eventually handled.