2/19/2016

In a 2003 survey only 50% of Canadians believed that land claims made by Aboriginal people in Canada were not valid. Since then little has changed in the opinions of the general population as most Canadians are uninformed. Being uninformed can give rise to fear and resistance in the public. 2/19/2016

Members of the police services are no different than the general public and without special training their understanding of Aboriginal land claims is very limited. Yet, it is their responsibility to keep the peace when land claims issues arise in the form of roadblock or peaceful reclamations. Provincial and Federal governments have used police as an enforcement tool with disastrous results. 2/19/2016

 The British North America Act of 1867 established government powers and the jurisdiction and governance of Aboriginal territories were given to the federal government.  As the land base dwindled and resources were depleted the Aboriginal people became more dependant on the government. They became the poorest group in the country. 2/19/2016

The historical case law set a land claim precedent in the case of the St. Catherine’s Milling and Lumber Company vs. The Queen. The Ojibwa people entered into a treaty with the government in 1873 for land use. John A. Macdonald then issued a timbering licence to the milling company. They cut 2 million feet of lumber when the province of Ontario filed an injunction. 2/19/2016

The province asserted that they and not the federal government was entitled to the licensing fees and royalties for timber because the property in question was in Ontario. The federal government argued that the Aboriginals had passed the ownership to the federal government including the resources contained within it. Ontario argued that the Indian title to land did not constitute full ownership since Indians had no concept of property rights as recognized by British law. 2/19/2016

The province won the argument. This was completely inconsistent with the Royal Proclamation as well as the treaties. This meant that Indian title in the land was defined as less than full title. In other words it appears that Indian rights to use the land was held at the pleasure of the Crown. The Crown had the right to take it away. 2/19/2016

This decision was made in the highest court in England and became binding on all future land issues involving Indian title to land. This single decision has become a huge obstacle to anyone trying to move forward in Aboriginal rights cases. 2/19/2016

Another case that significantly affected Aboriginal land and resource claims was this case. The government had fiduciary control – meaning it was their moral duty to act in the best interests of Aboriginal people. This however, was not recognized in law. The Indian Affairs department only has to be accountable to the federal government. 2/19/2016

In this case the Musqueam Indian Reserve agreed to lease 66 hectares of land to the city of Vancouver to the Shaugnessy Golf Club in The Royal Proclamation states that Indian Land can be leased – it was leased to the Crown and in turn leased to the golf club. The band agreed on the lease terms but the following lease to the golf club was not on the same agreed terms. The band grieved this but was not even given a copy of the lease agreement until /19/2016

 In the 1970’s the band attempted to sue the Crown for damages and the matter went all the way up to the Supreme Court.  At the heart of the argument was that it was the responsibility of the Crown to act in the best interests of the band. The Crown argued that it was a “political trust” but not a true trust enforceable by the courts. The Crown lost the case.  The Courts deemed that it would be unconscionable to permit the Crown to ignore the agreed terms of the lease and that it was their duty to act in the best interest of the band. 2/19/2016

 While this case was proceeding, it was also the time when the Canadian Constitution was patriated.  Prior to this time Aboriginal appeals went to international powers in Canada and Europe with their work resulting in Section 35 of the Constitution in  This states that the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.  What does this mean? 2/19/2016

 In the Constitution of 1982 no new rights were created, rather, the existing rights that were already in place were elevated though common law and treat and were given constitutional status.  This means that the rights of the Crown to modify or extinguish Aboriginal rights has been restricted. 2/19/2016

Mr. Sparrow is a Salish aboriginal living on a reserve located within the city limits of Vancouver. He fishes commercially and also for his own food. In 1984 he was charged with using a fishing net that was no longer allowed. He did not argue the charge but argued that he had an Aboriginal right to fish in the area of his forefathers and that this right was protected under Section 35 of the Constitution. More and more band members were being charged and fully supported his case. It was heard by the Supreme Court of Canada in /19/2016

 The Court recognized that the main issue was whether Parliament had the right to regulate Aboriginal fishing. The Crown’s position was that his rights had been extinguished prior to 1982 and therefore he had no rights for fishing.  The Crown was unsuccessful as they had not articulated in a clear and plain manner its intention to extinguish this aboriginal right.  From this point forward the onus is on the Crown to justify any infringement and any infringement must be established through a process of negotiation.  The common law Aboriginal right to fish is protected under the Constitution. 2/19/2016

One of the new approaches to land claims is co-management. It is a more inclusive and consensus-based approach to resource harvesting and development. It involves government, private industry, and Aboriginal groups all sharing decision-making. Co-management stresses resolving conflict through negotiation rather than litigation. But……….. 2/19/2016

 The protection of Aboriginal treaty rights such as hunting and fishing is seen as the responsibility of the federal government.  The management of natural resources is seen as a provincial responsibility.  Confusion can result when Aboriginal people choose to exercise on provincial Crown land their treaty rights to natural resources. 2/19/2016

 In Ontario there are three basic types of land claims:  Claims relating to the fulfillment of terms of treaties  (these are usually a result of disagreement between the Crown and First Nations about the size and location of reserves set aside by treaties)  Claims arising from the surrender for sale of reserve land.  (these occur when an Aboriginal community seeks compensation for, or the return of, land that had been surrendered to the Crown for sale for the benefit of the band.) 2/19/2016

Claims arising from Aboriginal title. (claims based on the allegation that lands traditionally used and occupied by Aboriginal people were never surrendered to the Crown by Aboriginal people. 2/19/2016

Dates back to 1784 when Britain allowed the Six nation to “take possession of and settle” approximately 385,000 hectares of land along the Grand River as a reward for their loyalty during the American Revolution. In 1792 the grant was reduced to 111,000 hectares. Since then part of it have been leased to the Crown and then sold to third parties. 2/19/2016

Henco Corporation bought a section of land from another company. In 1995 Six Nations sued the Canadian and Ontario governments asserting a land claim that included the above property. Ten years later Henco Corp. registered plans for Douglas Creek Subdivision with the province of Ontario and was granted title of the land. 2/19/2016

In 2006 when construction started there was a small group of Six Nations protestors that moved on to the construction site. Henco was granted a court order that required the protestors to leave but they didn’t. Eventually the O.P.P. were called in due to “an escalation of activity” and 16 people were arrested with the use of pepper spray and tasers. The result was that the protest worsened. 2/19/2016

 The government imposed a complete ban on construction and bought out the disputed land for $12.3 million.  There were further judicial efforts to remove the protestors and finally the Ontario Court of Appeal ruled again ordering the protestors off the land.  In 2011 the government agreed to pay $20 million to compensate the residents and business owners for the disruption caused by the protests.

 In order to fully resolve this issue one must determine which part of the original land grant was surrendered by Six Nations legitimately, which part was kept, and which part was taken without Six Nations consent.  The matter is ongoing.