Two really courageous articles from The Line in two days. Awesome stuff.
Wow do I love the courts forcing the legislature to grapple with the implications of the legislation they passed.
Anyone can read UNDRIP and DRIPA and realize that it’s maybe incompatible with modern industrial capitalism and the existence of modern Canada. But then the Eby and Trudeau governments assure that, no, it’s just a feel-good document to show that we care about Reconciliation. Your land title isn’t in jeopardy. Land Back is just a phrase, not a legal ask.
The courts are forcing everyone to clarify — is it actually just a symbol? Or are we talking revolutionary change, shattering the foundations of Canadian property law? (I know some of Eby’s advisors on record saying they want exactly that.)
This is key and Eby's choices confirm his squirmy worminess:
He's a fucking lawyer, supposedly familiar with human rights and constitutional law. I'm convinced the gutless asshole set this shit up to be shielded by making the courts do his dirty work, now realizing we all see he flushed BC's future down the toilet. Good for the courts call this his bluff. He should be sanctioned by the law society for malpractice. He now looks checked out on tv, like a privileged moron, biding time til he can slither back to Point Grey relaxant and privilege.
This is no different than his failed drug policy, and the fact he's responsible for untold deaths, when countless with lived experience told him how wrong this was.
Selfish, small, people fucking things up and hurting people.
sji, you assume that Eby actually read and - a real stretch - actually thought about DRIPA and that he actually read and - another real stretch - actually thought about Cowichan and that he actually read - and, yet again, another real stretch - actually thought about Musqueam.
In fact, I expect that a) he truly didn't read the material; b) his staff would have briefed him with "It's great, boss" and nothing else (he was too foolish to ask for details about that conclusion); and c) considered (or otherwise) thought is a foreign concept.
Bear in mind, Eby "couldn't remember" being at the signing announcement for Musqueam and he couldn't remember that his staff was briefed about Musqueam by the feds and that he misremembered the implications of DRIPA notwithstanding all the assertions at the time about these very issues.
you're giving the gutless asshole way too much credit. Like all wokies, he thought his actions had no consequences. He's just a very unintelligent person...
I am not a lawyer, or any kind of constitutional expert.
But when I read the words "rights" and "title", I am smart enough to know that common sense just left the room, and that woke, progressive, deconstructive, post-modern thinking is setting up shop.
Interesting fact to know. Australia put the adoption of UNDRIP to a vote (plebiscite). The result was a resounding No to the adoption of it.
We, of course, were never given the choice by our self righteous and incompetent Prime Minister J. T.
I am sure such a choice for his long suffering citizens did not at any time enter his head; he was, after all, a one man show who did not have much respect for his fellow Canadians.
In BC, 6% of the people claim well over 100% of the land. The federal and provincial governments think they can deal with this fundamental problem piecemeal.
No legal scholar am I, but my gut feeling says that when you grant someone some level of “rights” over a swathe of land, they generally seek to exert some level of authority over those lands. This feels like a stepping stone to me, a springboard for future lawsuits to expand their control and authority even if this one doesn’t outright grant it.
I personally suspect that our broken relationship with the indigenous community is one of the greatest drags on our economy. Who would honestly want to invest into this uncertainty when they can invest elsewhere without it?
"Reconciliation" should have always come with the caveat that it had an end point and was not a path to perpetual lawsuits and assertions of ever increasing rights. We've made a complete mess of it and given a particular class of citizens unlimited victim status to justify any disproportionate impact on the rest of society. Meanwhile other previously marginalized groups have come here with nothing and done perfectly well. At some point we all have to go forward as equals, but that statement makes me a right wing radical in Canada.
Anyone with a passing knowledge of the property tax system understands the assessment splits between land and improvements. If aboriginal title holds, then governments must send out two separate tax notices. One to owner of the land, the other to the owner of the improvement. To-date I've not heard any legal arguments on this split.
The incompetence and naïveté of the various folks who created DRIPA and the “leaders” here in Canada and B.C.who brought it to bear upon B.C. (and no other province) is absolutely amazing in its breadth. What did they think would happen? Or are these folks nihilists at heart, knowing precisely what would happen initially (as we see now) and then subsequently, where it will devolve into an ongoing legal set of wars between indigenous and the rest of society and/or between tribes of indigenous. The concept of “owning land” for what were nomadic groups or if not that then at least temporary inhabitants for seasonal hunting/fishing — makes little sense in the modern era.
Good way to undermine this province in a critical time with our southern neighbour.
The one useful thing about it is that no other province will adopt the current DRIPA guidelines after having witnessed this show on the Left Coast.
Wasn't it Eby, when he was Attorney General, that came up with the idea of DRIPA and making it the law of the land, since the original UNDRIP is a non-binding declaration?
I went to the courthouse, requested, and read 5 files of FN land claims in BC. In more than one case, the parties were a city, the Province and Canada. What surprised was the discussion of history in both claims and replies: there are more than two versions of what happened, who said what to whom, who committed to what: the history is not settled, nor agreed upon.
The other surprise, and one I've shared widely with folks who would want to know: there are countless examples of government officials making "land acknowledgements" as bullet points in the FN Notices of Civil Claim, offered as evidence these officials support giving the land to FN! There are examples of Mayors, CRD directors, the CRD's and City's website are cited, John Horgan, Provincial and Federal government officials.
This is a big deal, and no-one I know is doing them any more, ever, including me. I always wondered wtf these phrases were for: a prayer? a wish? a legal statement? They're bullshit. And no-one I know is interested in having their name, title, the date of their "land acknowledgement" used as evidence in a civil claim.
So BC aside how do we determine where the line falls between the incompetence of elected federal government (Carney) and the ongoing incompetence of the out of touch bureaucrats in Ottawa?
“The beginning of the end of private property…”. That canoe left the beach when Trudeau the Greater superceded Canada’s Bill of Rights with the Charter (AKA Government Permission) of rights and freedoms which removed property rights that had been in the previous Bill of Rights.
And once you give a pet a taste of human blood, it will never go back. Expect challenges throughout Canada. And if you are familiar with colonial history there is a tale of a British master who kept a tame tiger until it tasted a drop of the master’s blood, then promptly took his pistol and killed the tiger before it could attack him. While I don’t see many people with pistols and prairie oysters in Ottawa, the people who have invested huge amounts in Vancouver real estate might have a different attitude.
My understanding is that the Bill of Rights is still valid law, but it's ordinary legislation that can be easily superseded and does not have the same status as a true constitutional document. It's an absolute travesty that the Charter does not protect private property though.
I thought at the time that Trudeau’s genius was to take absolute rights and turn them into Government permissions. Which could then be taken back at will by politicians aided and abetted by bureaucrats. And I was amazed by the absence of reaction from the US. They were more worried about the Cuban socialists to the south than the Northern socialists. Maybe it was because Canadians at the time were mostly white rather than Hispanic.🙄
Better still, you never had those rights in the first place. But it's become increasingly clear that the Charter granted few or no rights to ordinary upstanding citizens unless you can shoehorn yourself into a "disadvantaged" group.
True enough. With a constitutional monarchy power flows from the king down to the people. I had mistakenly assumed that because the Canada bill of rights was derived from the Universal Declaration of Human Rights that they were absolute. In the US constitution rights are God given which is much more “absolute”. So the term “Charter of Rights and Freedoms” is putting lipstick on a “permission” pig to make Canadians think they have the same rights as their neighbors to the south. Not so…
We might have done better just directly elevating the Bill of Rights to constitutional status and I think that was sort of what was originally intended but the sausage making process gave us what we got. It was the NDP that got property rights removed from what I recall.
Of course all is still subject to Section 1, so the SCC might still decide that things like AR-15's and gas guzzling pickup trucks, or the idea that your private paid-for title overrides native land claims, don't belong in a free and democratic society.
The NDP may have influenced property rights removal but they were gleefully supported by the provinces such as PEI that didn’t want foreigners buying seashore properties and pricing out the locals. The provinces do love the power to control the use of land and affect its value.
Property rights are fundamental to a civil society. That this is not understood by so many in important positions in government and the judiciary speaks volumes about the declining state of our country.
Rob Shaw has drawn attention to the importance of intent. Throughout the ages Canadian politicians and government legislated with intent. Premier Eby finds himself in a world he helped create. A world in which intentions mean little if the results cause harm, even unintended or unimagined harm.
It sets up an interesting dynamic between the foreign criminal money launderers driving Vancouver's real estate prices and aboriginal bands making land claims. Bookended between these two militant factions is the feckless David Eby.
Maybe that's why Eby looks like a zombie lately. He conjured up this nightmare by allowing ideology to control his decision-making. The good ship British Columbia is heading straight toward an iceberg and Eby knows he lost control.
The Loonie Hour podcast, (which is a good follow) has recently done 2 episodes with Tom Issac, who is a well-known Aboriginal lawyer in Canada, had many insightful thoughts on this issue. In short, our governments are undermining us in secret. Have a listen. We are in deep trouble. Leadership needed immediately. So you know we are screwed.
A fascinating read. I guess there are consequences to signing treaties and ignoring them before the ink is dry. I wonder what Alberta thinks about this highly complicated ruling? Life doesn't get any less complex.
This is the issue. I think it’s well established now that many of the treaty obligations were breached, and that leads to huge cash settlements in some provinces eg Ontario.
But in BC where it calls into question the entire ownership of the land — how do you get past this? You’re talking about almost revolutionary change to the province. In the US the Supreme Court in a similar case (actually in my opinion an even stronger case by the Indigenous group to the land rights) basically said “giving back North Dakota is impossible, you get a cash settlement”.
In Canada we seem to be taking a different approach. But how is this actually going to work?
The cash settlement option is the best one. Simpler, and similar to the ones that are in use in functional developing countries where people long native to an area use the cash money to migrate to cities and set themselves up for success. At the same time, the title of the land is clear and economic development for everyone can proceed.
I don't know what the final number would be. But a fair, even generous settlement that solves the ownership issue permanently would probably be more net cost effective than nickel-and-diming things in the courts while preventing development.
Capitalists, and people in general, prefer stability and predictability before they commit to long term investment.
We also have the problem that there are over 600 (619 according to Grok) registered First Nations in Canada, not counting Métis. It will become a free for all with negotiations similar to trying satisfy numerous Public Sector unions whose contracts all expire at the same time, or the UAW negotiating with several employers.
The first one sets the bar and all the ones that follow want to raise it. Do you think the social justice infused Liberal Party will have the spine to stand up on behalf of non-Indigenous Canadians and come up with a single offer to split amongst all tribes?
The best way to handle it is as a grand bargain, so there is none of the process that you describe, with the racheting costs. It's the historical standard for this sort of big change with many moving parts.
But also consider -- what is the alternative? Perpetual limbo? Twilight legal warfare? We have a territory the size of small continent, most of it in West and the Pacific Coast, that we can't easily develop, and we as Canadians are poorer for it.
If you want to be transparent about paying for it, just earmark a 5% royalty tax on resources extracted from the newly legally clear territory to pay off whatever negotiated debt it takes to settle this. In time, the debt will be paid from funds that otherwise would never have been available, and we'll have the issue settled and the land open for development.
I haven't the faintest idea. Simplistically, it seems they gave us the land in return for our taking on the responsibility to look after them. Almost sounds like a breach of contract. How it gets resolved.....
At one end, U.S. v. Sioux Nation (sorry we broke our contract, but giving the land back is impossible now, so you get a cash settlement, take it or leave it)
At the other end, well, actual Land Back (Indigenous title superior to fee simple title over wide swathes of B.C.)
I assume we’ll try to craft something in the middle. Investors will have an opinion. (The Iron Bank will have its due!)
Ask the Supreme Court of Canada. It's "one of a kind" (sui generis) don't you know?
Canadian constitutional law is a giant clusterfuck of 100+ page SCC decisions where they insert their own head in their own place where the sun don't shine trying to justify inventing not just new laws, but often entirely new concepts of law, out of whole cloth. Aboriginal title is possibly the most egregious of these though.
Indigenous people never heard of the concept of " Fee Simple". It was a colonial concept where individuals actually owned a piece of land (plot, acre, hectare) staked it off, put a fence around it and often defended it with armed conflict thus, confining Indigenous peoples to certain areas. Indigenous people signed " Peace and Friendship Treaties" with various colonial entities in essence saying, " you strangers are welcome to live on the land and hunt and fish like the rest of us and provide for your families and trade with us for stuff we need and stuff you may need. We promise to keep the peace as long as you strangers do the same" This would have been in keeping with the Indigenous idea of Mother Earth and communal living and stewardship of the land. Great idea! Then "greed" reared its ugly head. Colonials who outnumbered and out armed the Indigenous said : "You guys buzz off. This is now our land. You go live over there somewhere and don't interfere or else" Colonial Governors sided with the settlers and it continued until the so called "civilized" people out numbered the Indigenous people until Indigenous groups said "Lets remind the strangers that they are in violation of their own agreements" So we have the situation today>
In California, you can buy a home on leased land. You own the home, but you lease the land.
In California, your property taxes are based on 2 per cent of the purchase price of your home.
What happens is that the fee simple homes have higher resale values, ceteris paribus, and leased homes are "discounted" by the amount you have to pay on the lease, above-and-beyond the state taxes. So, the discount lowers your future taxes to balance off the lease payments.
There are situations in Palm Springs, for example, where you may have a fee simple title, but your neighbour is actually on leased land. So, if the two houses are identical in every other way, your house might sell for $600,000, while your neighbour's goes for $500,000, and the difference represents the present discounted value of the future lease payment stream. Your taxes are $12,000 per year, his are $10,000 per year, and the lease payment balances out the difference.
I am not sure if this is helpful, but your question reminded me of this odd circumstance.
Let's call it what it is...Eby just lied, horribly and blatantly lied that he knew nothing about the Musqueam deal. He only scrambled back on that when a picture came to light showing him actually at the table when the agreement was signed. How can he continue to be the BC premier when he is totally shamed by his weasel words and actions.
I would like to know as well, evidently we live on unceded land but continually sign agreements with various bands throughout the province, usually involving a large payout. Are any of these lands actually ceded to Canada? Why bother with agreements when Canada gets nothing back? Unless treaties are signed which transfer all lands to Canada, no further agreements should ever be signed and no further monies should be extended. It's time to get tough around that negotiating table.
The key underlying issue is that unlike most of Canada, **there were no treaties in BC** ceding the land to the Crown. The Supreme Court ruled in 1997 that Aboriginal title continues to exist. As a layperson, I found Timothy Huyer's explanation of the obligations of the Crown ("honour of the Crown") in the context of TMX to be very helpful. https://morehousing.ca/timothy-huyer
My understanding is that land claims are typically settled through negotiations (rather than court decisions), which provides certainty for private landowners. A recent example would be the Tsawwassen First Nation Final Agreement, between Tsawwassen First Nation, Canada, and BC, ratified in 2009. https://www.rcaanc-cirnac.gc.ca/eng/1100100022706/1617737111330
In this instance, I would add, however, that, yes, negotiations are critical but, if the parties are simply unable to find agreement and are in fundamentally different positions, then it is quite possible that the courts might be called upon to decide how to cut up the baby. [I'm sure that you got that allusion to Solomon.]
So, a judge may be asked to accept option A or option B and ultimately may choose A.1, being the original option A with one particularly egregious aspect modified. Or something like that.
I raise this point simply because, while I absolutely agree that negotiations are critical, it seems to me that the courts at all levels have taken note of the various aspects of the constitution that favor the natives and, like all the various "rights" [note the quotation marks] have chosen to "read in" various additional rights and interpretations. That being so, if one "nation" [again, quotation marks] decides to gamble and takes a particularly strong position it may end up to the court to decide A or B and that nation wins - perhaps not all but certainly much more than we would have otherwise thought.
So, damned court made law. Again. Yet another thing to fear given the way the politicians are screwing this up so badly.
Joseph Heath notes that when there’s a conflict between two of the three branches of government - executive, legislative, and judicial - each of the Western democracies has come up with its own answer to the question of who wins. In Canada, there’s a tradition of legislative supremacy: Parliament wins. Within the judicial system, there's a tradition of judicial deference to the legislature. https://josephheath.substack.com/p/observations-on-the-us-constitutional
In the US, on the other hand, the norm is judicial supremacy, due to the risk of paralysis caused by a standoff between the directly elected President and the directly elected legislature. The problem is, to quote Heath: "Judicial supremacy has a number of pathological effects on government, including a near-complete disregard for questions of cost and efficiency."
I think it's important for Canada to avoid drifting towards the US approach of judicial supremacy.
I confess that I have not read Heath but I disagree with the conclusion that you have ascribed to him, i.e. that in Canada where there are differences the tradition is for legislative supremacy. That may have been the case (indeed, my memory suggests that that was the case) but I distinctly believe that to not be the case now. I offer as a suggestion the various court decisions wherein the court "read in" various rights and then those artificial rights were the basis upon which clear legislative intent was ruled invalid and discarded whole cloth.
It further seems to me that, yes, in the US we have a situation of judicial supremacy but that Canada has rushed into emulating the US situation. To that I personally ascribe as the cause the worship of the Charter of Rights and Freedoms rather than the previous (i.e. prior to 1982) Canadian approach which was a conservative (note the lower case "c") approach with slow incremental change.
As for the quote that you offer from Heath, I suggest that that quote very correctly describes the attitudes of the Canadian judicial system simply because I believe that, notwithstanding your last paragraph, I believe that Canada very, very much is emulating the US approach.
Two really courageous articles from The Line in two days. Awesome stuff.
Wow do I love the courts forcing the legislature to grapple with the implications of the legislation they passed.
Anyone can read UNDRIP and DRIPA and realize that it’s maybe incompatible with modern industrial capitalism and the existence of modern Canada. But then the Eby and Trudeau governments assure that, no, it’s just a feel-good document to show that we care about Reconciliation. Your land title isn’t in jeopardy. Land Back is just a phrase, not a legal ask.
The courts are forcing everyone to clarify — is it actually just a symbol? Or are we talking revolutionary change, shattering the foundations of Canadian property law? (I know some of Eby’s advisors on record saying they want exactly that.)
This is key and Eby's choices confirm his squirmy worminess:
He's a fucking lawyer, supposedly familiar with human rights and constitutional law. I'm convinced the gutless asshole set this shit up to be shielded by making the courts do his dirty work, now realizing we all see he flushed BC's future down the toilet. Good for the courts call this his bluff. He should be sanctioned by the law society for malpractice. He now looks checked out on tv, like a privileged moron, biding time til he can slither back to Point Grey relaxant and privilege.
This is no different than his failed drug policy, and the fact he's responsible for untold deaths, when countless with lived experience told him how wrong this was.
Selfish, small, people fucking things up and hurting people.
sji, you assume that Eby actually read and - a real stretch - actually thought about DRIPA and that he actually read and - another real stretch - actually thought about Cowichan and that he actually read - and, yet again, another real stretch - actually thought about Musqueam.
In fact, I expect that a) he truly didn't read the material; b) his staff would have briefed him with "It's great, boss" and nothing else (he was too foolish to ask for details about that conclusion); and c) considered (or otherwise) thought is a foreign concept.
Bear in mind, Eby "couldn't remember" being at the signing announcement for Musqueam and he couldn't remember that his staff was briefed about Musqueam by the feds and that he misremembered the implications of DRIPA notwithstanding all the assertions at the time about these very issues.
you're giving the gutless asshole way too much credit. Like all wokies, he thought his actions had no consequences. He's just a very unintelligent person...
10 upvotes for this comment. In contrast to some others where we two so obviously disagree.
I am not a lawyer, or any kind of constitutional expert.
But when I read the words "rights" and "title", I am smart enough to know that common sense just left the room, and that woke, progressive, deconstructive, post-modern thinking is setting up shop.
Interesting fact to know. Australia put the adoption of UNDRIP to a vote (plebiscite). The result was a resounding No to the adoption of it.
We, of course, were never given the choice by our self righteous and incompetent Prime Minister J. T.
I am sure such a choice for his long suffering citizens did not at any time enter his head; he was, after all, a one man show who did not have much respect for his fellow Canadians.
In BC, 6% of the people claim well over 100% of the land. The federal and provincial governments think they can deal with this fundamental problem piecemeal.
They are mistaken.
No legal scholar am I, but my gut feeling says that when you grant someone some level of “rights” over a swathe of land, they generally seek to exert some level of authority over those lands. This feels like a stepping stone to me, a springboard for future lawsuits to expand their control and authority even if this one doesn’t outright grant it.
I personally suspect that our broken relationship with the indigenous community is one of the greatest drags on our economy. Who would honestly want to invest into this uncertainty when they can invest elsewhere without it?
"Reconciliation" should have always come with the caveat that it had an end point and was not a path to perpetual lawsuits and assertions of ever increasing rights. We've made a complete mess of it and given a particular class of citizens unlimited victim status to justify any disproportionate impact on the rest of society. Meanwhile other previously marginalized groups have come here with nothing and done perfectly well. At some point we all have to go forward as equals, but that statement makes me a right wing radical in Canada.
I would rather be governed by your gut feeling than 10,000 legal scholars.
Your last sentence says a mouthful. Assuming it was not a rhetorical question, the answer is no one.
When you elect clowns something something a circus...
Anyone with a passing knowledge of the property tax system understands the assessment splits between land and improvements. If aboriginal title holds, then governments must send out two separate tax notices. One to owner of the land, the other to the owner of the improvement. To-date I've not heard any legal arguments on this split.
That will muddy the waters further and make things far more interesting at the negotiating table.
Muddy the waters is right. It's an inescapable fact established by government taxation policy and to date I've not seen it discussed.
The incompetence and naïveté of the various folks who created DRIPA and the “leaders” here in Canada and B.C.who brought it to bear upon B.C. (and no other province) is absolutely amazing in its breadth. What did they think would happen? Or are these folks nihilists at heart, knowing precisely what would happen initially (as we see now) and then subsequently, where it will devolve into an ongoing legal set of wars between indigenous and the rest of society and/or between tribes of indigenous. The concept of “owning land” for what were nomadic groups or if not that then at least temporary inhabitants for seasonal hunting/fishing — makes little sense in the modern era.
Good way to undermine this province in a critical time with our southern neighbour.
The one useful thing about it is that no other province will adopt the current DRIPA guidelines after having witnessed this show on the Left Coast.
Wasn't it Eby, when he was Attorney General, that came up with the idea of DRIPA and making it the law of the land, since the original UNDRIP is a non-binding declaration?
I went to the courthouse, requested, and read 5 files of FN land claims in BC. In more than one case, the parties were a city, the Province and Canada. What surprised was the discussion of history in both claims and replies: there are more than two versions of what happened, who said what to whom, who committed to what: the history is not settled, nor agreed upon.
The other surprise, and one I've shared widely with folks who would want to know: there are countless examples of government officials making "land acknowledgements" as bullet points in the FN Notices of Civil Claim, offered as evidence these officials support giving the land to FN! There are examples of Mayors, CRD directors, the CRD's and City's website are cited, John Horgan, Provincial and Federal government officials.
This is a big deal, and no-one I know is doing them any more, ever, including me. I always wondered wtf these phrases were for: a prayer? a wish? a legal statement? They're bullshit. And no-one I know is interested in having their name, title, the date of their "land acknowledgement" used as evidence in a civil claim.
So BC aside how do we determine where the line falls between the incompetence of elected federal government (Carney) and the ongoing incompetence of the out of touch bureaucrats in Ottawa?
“The beginning of the end of private property…”. That canoe left the beach when Trudeau the Greater superceded Canada’s Bill of Rights with the Charter (AKA Government Permission) of rights and freedoms which removed property rights that had been in the previous Bill of Rights.
And once you give a pet a taste of human blood, it will never go back. Expect challenges throughout Canada. And if you are familiar with colonial history there is a tale of a British master who kept a tame tiger until it tasted a drop of the master’s blood, then promptly took his pistol and killed the tiger before it could attack him. While I don’t see many people with pistols and prairie oysters in Ottawa, the people who have invested huge amounts in Vancouver real estate might have a different attitude.
My understanding is that the Bill of Rights is still valid law, but it's ordinary legislation that can be easily superseded and does not have the same status as a true constitutional document. It's an absolute travesty that the Charter does not protect private property though.
I thought at the time that Trudeau’s genius was to take absolute rights and turn them into Government permissions. Which could then be taken back at will by politicians aided and abetted by bureaucrats. And I was amazed by the absence of reaction from the US. They were more worried about the Cuban socialists to the south than the Northern socialists. Maybe it was because Canadians at the time were mostly white rather than Hispanic.🙄
Better still, you never had those rights in the first place. But it's become increasingly clear that the Charter granted few or no rights to ordinary upstanding citizens unless you can shoehorn yourself into a "disadvantaged" group.
True enough. With a constitutional monarchy power flows from the king down to the people. I had mistakenly assumed that because the Canada bill of rights was derived from the Universal Declaration of Human Rights that they were absolute. In the US constitution rights are God given which is much more “absolute”. So the term “Charter of Rights and Freedoms” is putting lipstick on a “permission” pig to make Canadians think they have the same rights as their neighbors to the south. Not so…
We might have done better just directly elevating the Bill of Rights to constitutional status and I think that was sort of what was originally intended but the sausage making process gave us what we got. It was the NDP that got property rights removed from what I recall.
Of course all is still subject to Section 1, so the SCC might still decide that things like AR-15's and gas guzzling pickup trucks, or the idea that your private paid-for title overrides native land claims, don't belong in a free and democratic society.
I could see no good reason for what Pierre Trudeau wanted, other than to leave his permanent mark on us.
I was a solid NDP voter at that time and thought that John Diefenbaker’s Bill of Rights was sufficient.
There were many pieces written on the pros and cons of the adoption of Pierre’s desire for his legacy, the Constitution. It was his conceit.
I am of the opinion that the cons to its adoption have been proven. Parliament lost.
The NDP may have influenced property rights removal but they were gleefully supported by the provinces such as PEI that didn’t want foreigners buying seashore properties and pricing out the locals. The provinces do love the power to control the use of land and affect its value.
Property rights are fundamental to a civil society. That this is not understood by so many in important positions in government and the judiciary speaks volumes about the declining state of our country.
Rob Shaw has drawn attention to the importance of intent. Throughout the ages Canadian politicians and government legislated with intent. Premier Eby finds himself in a world he helped create. A world in which intentions mean little if the results cause harm, even unintended or unimagined harm.
It sets up an interesting dynamic between the foreign criminal money launderers driving Vancouver's real estate prices and aboriginal bands making land claims. Bookended between these two militant factions is the feckless David Eby.
Interesting scenario.
Maybe that's why Eby looks like a zombie lately. He conjured up this nightmare by allowing ideology to control his decision-making. The good ship British Columbia is heading straight toward an iceberg and Eby knows he lost control.
The Loonie Hour podcast, (which is a good follow) has recently done 2 episodes with Tom Issac, who is a well-known Aboriginal lawyer in Canada, had many insightful thoughts on this issue. In short, our governments are undermining us in secret. Have a listen. We are in deep trouble. Leadership needed immediately. So you know we are screwed.
A fascinating read. I guess there are consequences to signing treaties and ignoring them before the ink is dry. I wonder what Alberta thinks about this highly complicated ruling? Life doesn't get any less complex.
This is the issue. I think it’s well established now that many of the treaty obligations were breached, and that leads to huge cash settlements in some provinces eg Ontario.
But in BC where it calls into question the entire ownership of the land — how do you get past this? You’re talking about almost revolutionary change to the province. In the US the Supreme Court in a similar case (actually in my opinion an even stronger case by the Indigenous group to the land rights) basically said “giving back North Dakota is impossible, you get a cash settlement”.
In Canada we seem to be taking a different approach. But how is this actually going to work?
The cash settlement option is the best one. Simpler, and similar to the ones that are in use in functional developing countries where people long native to an area use the cash money to migrate to cities and set themselves up for success. At the same time, the title of the land is clear and economic development for everyone can proceed.
Does the money already paid over the past 10 years or so count towards the total settlement?
I don't know what the final number would be. But a fair, even generous settlement that solves the ownership issue permanently would probably be more net cost effective than nickel-and-diming things in the courts while preventing development.
Capitalists, and people in general, prefer stability and predictability before they commit to long term investment.
We also have the problem that there are over 600 (619 according to Grok) registered First Nations in Canada, not counting Métis. It will become a free for all with negotiations similar to trying satisfy numerous Public Sector unions whose contracts all expire at the same time, or the UAW negotiating with several employers.
The first one sets the bar and all the ones that follow want to raise it. Do you think the social justice infused Liberal Party will have the spine to stand up on behalf of non-Indigenous Canadians and come up with a single offer to split amongst all tribes?
The best way to handle it is as a grand bargain, so there is none of the process that you describe, with the racheting costs. It's the historical standard for this sort of big change with many moving parts.
But also consider -- what is the alternative? Perpetual limbo? Twilight legal warfare? We have a territory the size of small continent, most of it in West and the Pacific Coast, that we can't easily develop, and we as Canadians are poorer for it.
If you want to be transparent about paying for it, just earmark a 5% royalty tax on resources extracted from the newly legally clear territory to pay off whatever negotiated debt it takes to settle this. In time, the debt will be paid from funds that otherwise would never have been available, and we'll have the issue settled and the land open for development.
I haven't the faintest idea. Simplistically, it seems they gave us the land in return for our taking on the responsibility to look after them. Almost sounds like a breach of contract. How it gets resolved.....
The possibilities can be bookended by:
At one end, U.S. v. Sioux Nation (sorry we broke our contract, but giving the land back is impossible now, so you get a cash settlement, take it or leave it)
At the other end, well, actual Land Back (Indigenous title superior to fee simple title over wide swathes of B.C.)
I assume we’ll try to craft something in the middle. Investors will have an opinion. (The Iron Bank will have its due!)
It's going to be interesting...
hmmm... that's an opinion. I learned something different.
How does Aborigonal Title differ from Fee Simple Title? I don't understand how more than one type of title can exist.
Ask the Supreme Court of Canada. It's "one of a kind" (sui generis) don't you know?
Canadian constitutional law is a giant clusterfuck of 100+ page SCC decisions where they insert their own head in their own place where the sun don't shine trying to justify inventing not just new laws, but often entirely new concepts of law, out of whole cloth. Aboriginal title is possibly the most egregious of these though.
Indigenous people never heard of the concept of " Fee Simple". It was a colonial concept where individuals actually owned a piece of land (plot, acre, hectare) staked it off, put a fence around it and often defended it with armed conflict thus, confining Indigenous peoples to certain areas. Indigenous people signed " Peace and Friendship Treaties" with various colonial entities in essence saying, " you strangers are welcome to live on the land and hunt and fish like the rest of us and provide for your families and trade with us for stuff we need and stuff you may need. We promise to keep the peace as long as you strangers do the same" This would have been in keeping with the Indigenous idea of Mother Earth and communal living and stewardship of the land. Great idea! Then "greed" reared its ugly head. Colonials who outnumbered and out armed the Indigenous said : "You guys buzz off. This is now our land. You go live over there somewhere and don't interfere or else" Colonial Governors sided with the settlers and it continued until the so called "civilized" people out numbered the Indigenous people until Indigenous groups said "Lets remind the strangers that they are in violation of their own agreements" So we have the situation today>
In California, you can buy a home on leased land. You own the home, but you lease the land.
In California, your property taxes are based on 2 per cent of the purchase price of your home.
What happens is that the fee simple homes have higher resale values, ceteris paribus, and leased homes are "discounted" by the amount you have to pay on the lease, above-and-beyond the state taxes. So, the discount lowers your future taxes to balance off the lease payments.
There are situations in Palm Springs, for example, where you may have a fee simple title, but your neighbour is actually on leased land. So, if the two houses are identical in every other way, your house might sell for $600,000, while your neighbour's goes for $500,000, and the difference represents the present discounted value of the future lease payment stream. Your taxes are $12,000 per year, his are $10,000 per year, and the lease payment balances out the difference.
I am not sure if this is helpful, but your question reminded me of this odd circumstance.
(tongue in cheek thought) We need to be splained on all this stuff; is it mostly nitty or mostly gritty?
Let's call it what it is...Eby just lied, horribly and blatantly lied that he knew nothing about the Musqueam deal. He only scrambled back on that when a picture came to light showing him actually at the table when the agreement was signed. How can he continue to be the BC premier when he is totally shamed by his weasel words and actions.
I would like to know as well, evidently we live on unceded land but continually sign agreements with various bands throughout the province, usually involving a large payout. Are any of these lands actually ceded to Canada? Why bother with agreements when Canada gets nothing back? Unless treaties are signed which transfer all lands to Canada, no further agreements should ever be signed and no further monies should be extended. It's time to get tough around that negotiating table.
The key underlying issue is that unlike most of Canada, **there were no treaties in BC** ceding the land to the Crown. The Supreme Court ruled in 1997 that Aboriginal title continues to exist. As a layperson, I found Timothy Huyer's explanation of the obligations of the Crown ("honour of the Crown") in the context of TMX to be very helpful. https://morehousing.ca/timothy-huyer
My understanding is that land claims are typically settled through negotiations (rather than court decisions), which provides certainty for private landowners. A recent example would be the Tsawwassen First Nation Final Agreement, between Tsawwassen First Nation, Canada, and BC, ratified in 2009. https://www.rcaanc-cirnac.gc.ca/eng/1100100022706/1617737111330
As always, Sir, I find your comments helpful.
In this instance, I would add, however, that, yes, negotiations are critical but, if the parties are simply unable to find agreement and are in fundamentally different positions, then it is quite possible that the courts might be called upon to decide how to cut up the baby. [I'm sure that you got that allusion to Solomon.]
So, a judge may be asked to accept option A or option B and ultimately may choose A.1, being the original option A with one particularly egregious aspect modified. Or something like that.
I raise this point simply because, while I absolutely agree that negotiations are critical, it seems to me that the courts at all levels have taken note of the various aspects of the constitution that favor the natives and, like all the various "rights" [note the quotation marks] have chosen to "read in" various additional rights and interpretations. That being so, if one "nation" [again, quotation marks] decides to gamble and takes a particularly strong position it may end up to the court to decide A or B and that nation wins - perhaps not all but certainly much more than we would have otherwise thought.
So, damned court made law. Again. Yet another thing to fear given the way the politicians are screwing this up so badly.
Joseph Heath notes that when there’s a conflict between two of the three branches of government - executive, legislative, and judicial - each of the Western democracies has come up with its own answer to the question of who wins. In Canada, there’s a tradition of legislative supremacy: Parliament wins. Within the judicial system, there's a tradition of judicial deference to the legislature. https://josephheath.substack.com/p/observations-on-the-us-constitutional
In the US, on the other hand, the norm is judicial supremacy, due to the risk of paralysis caused by a standoff between the directly elected President and the directly elected legislature. The problem is, to quote Heath: "Judicial supremacy has a number of pathological effects on government, including a near-complete disregard for questions of cost and efficiency."
I think it's important for Canada to avoid drifting towards the US approach of judicial supremacy.
I confess that I have not read Heath but I disagree with the conclusion that you have ascribed to him, i.e. that in Canada where there are differences the tradition is for legislative supremacy. That may have been the case (indeed, my memory suggests that that was the case) but I distinctly believe that to not be the case now. I offer as a suggestion the various court decisions wherein the court "read in" various rights and then those artificial rights were the basis upon which clear legislative intent was ruled invalid and discarded whole cloth.
It further seems to me that, yes, in the US we have a situation of judicial supremacy but that Canada has rushed into emulating the US situation. To that I personally ascribe as the cause the worship of the Charter of Rights and Freedoms rather than the previous (i.e. prior to 1982) Canadian approach which was a conservative (note the lower case "c") approach with slow incremental change.
As for the quote that you offer from Heath, I suggest that that quote very correctly describes the attitudes of the Canadian judicial system simply because I believe that, notwithstanding your last paragraph, I believe that Canada very, very much is emulating the US approach.