GIESBRECHT: Musqueam Madness — secret land deals and the end of property rights in BC
BC residents, still reeling from the fallout of the Cowichan decision that threatens basic property rights, woke up to read newspaper articles about an agreement between the federal government and the Musqueam Indian band that purported to give Aboriginal Title to large parts of Vancouver to the...
Interesting points:
*Charter Section 35’s recognition of Aboriginal rights very clearly says “existing Aboriginal rights.” That means “existing” as of 1982. Inventing new Aboriginal rights is not something that the SCC has the authority and jurisdiction to do.
*But Pardy also offers another intriguing suggestion about how Canada could rid itself of this paralyzingly Indian apartheid “First Nation” obsession. And it has to do with the upcoming Alberta sovereignty referendum. Extending his reasoning only slightly, it is this: There is little chance that the SCC or our hapless politicians will reverse course on the Indian status quo. However, if faced with a “Yes” vote in the Alberta referendum, the federal government and all provinces would be required to open up the constitution on all questions for discussion. Only if the parties had exhausted discussions would Canada be required to let Alberta go. So, for Albertans who want to see Canada stay together, but are completely dissatisfied with the status quo, a “Yes” vote is their only option. This is the only way for them to force open the constitution for topics, like the end of the Indian apartheid system, to be discussed. This would also be their only option to have other important grievances, like equalization, immigration, and the war on fossil fuels and pipelines, to be seriously discussed.
BC residents, still reeling from the fallout of the Cowichan decision that threatens basic property rights, woke up to read newspaper articles about an agreement between the federal government and the Musqueam Indian band that purported to give Aboriginal Title to large parts of Vancouver to the Musqueam. Politicians, in full panic mode, then proceeded to say some combination of: “They didn’t know anything about it; it wasn’t their fault; and the agreement didn’t mean what it said, so not to worry.” News of the agreement was also immediately met by opposition from another Indian band, the Squamish, who will be disputing the Musqueam claim.
Other disputes between Indian bands are sure to follow, because this is only one of the hundreds of “agreements” being negotiated behind closed doors in Ottawa and Vancouver.
One of the rationales for these agreements is the fact that most of BC did not negotiate treaties with the Indian bands resident there after Confederation. So, it is argued, the federal and provincial governments are simply making up for that failure to do so now.
This argument is disputed by many legal scholars, but even if valid, it is not true that the “agreements”, such as this Musqueam agreement, are the equivalent of the numbered treaties made with the Indians from 1871-1920. Those “numbered” treaties required the surrender by the Indians of any interest they had in the land in return for compensation from the government. The Musqueam agreement, and the others now being negotiated behind closed doors, require no such thing. The Indians give up nothing and retain any Aboriginal Title claims they have to the land, even after signing.
And while the compensation received by the Indians in the numbered treaties was modest, the compensation received under these new BC agreements is extremely rich. The numbered treaty Indians received reserves, $5 per year, and the right to hunt on Crown land surrounding the reserves until it was needed by the government for other purposes. That was basically it. Under these new BC agreements, the Indians receive extensive powers to control vast areas of Crown land - in effect, a veto over development. As for the amount of money the Musqueam will receive, the government refuses to tell us. However, the total worth of their effective veto over development and cash awards will be in the many millions, or even billions. Not $5 per year.
In short, the Musqueam agreement bears little resemblance to the original treaties and, in most ways, is a violation of what the original treaty makers intended.
But the other rationale for these agreements is that “aboriginal rights” as stipulated in Section 35 of the Constitution require that these extremely rich agreements be made. But wait! Aboriginals already have exactly the same rights as any other Canadian. They vote, run for office, get passports, etc., exactly like everyone else. They also have many special privileges that other Canadians do not enjoy. The only right they don’t have is the right to own property on their reserve, and the government would give them that in a heartbeat if they signed off on their special privileges. (When the federal government made that enfranchisement offer in 1920, 1933, and again in 1969, the chiefs refused.)
But the main reason why the current upheaval resulting from the current effort to restore “title” to the claimed descendants of ancient Indian tribes is that those tribes never had “title” to begin with. They were semi-nomadic hunting cultures that followed food supplies. The stronger groups took the best hunting and fishing territories, and had done so for thousands of years. There was no such thing as “title” in that world. Our Supreme Court and government have chosen to ignore that very obvious fact, in a glaring example of what historians call “presentism.”
But regardless of the flawed reasoning leading up to these new agreements, they are here, and more are coming. The Musqueam agreement is just one of many that will be announced over the next few years. Many BC residents might find themselves paying rent to new landlords. Instead of paying municipal, provincial, and federal taxes, there might be a Musqueam, Squamish, or other tax on top of that.
And we have no idea how any of these agreements will work. Do Vancouver property owners now have a “duty to consult” with the Musqueam board if they want to get a permit to build a deck onto their homes? Or maybe they have to get one from the Squamish as well? Do homeowners have to get some kind of indigenous consent to sell their homes? What will the fee be? What happens if permission isn’t granted? Is there some kind of Musqueam appeal board? What exactly do real estate dealers or business developers tell their clients and customers? What about if the current Cowichan leaders, who say they aren’t going after private property, are replaced at the next election by those who do?
Not to worry, say apologists for the Eby and Carney governments, these are just “historical errors” being corrected — just “reconciliation” in progress. BC property owners have discovered to their horror that listening to these apologists since the BC NDP government first launched its reconciliation crusade was a massive error.
Exactly what happens now is anybody’s guess, but it is clear that BC is now well on its way to becoming that “patchwork of tiny Bantustans” that writer Jon Kay warned about many years ago. Professor Tom Flanagan predicted this even earlier in his prescient book, “First Nations? Second Thoughts.” And senior Ontario lawyer, Peter Best, describes in detail how destructive the Indian apartheid reserve system has been in his important book, “There Is No Difference.”
But “Aboriginal Title,” “Duty to Consult,” “UNDRIP and DRIPA,” “First Nations,” and “Land acknowledgements” are all recent inventions. Anyone mentioning any one of these terms a generation ago would have been met with a blank stare. And anyone suggesting that you might have to give up the house you had worked for all of your life to buy to someone claiming that their ancestors hunted or fished in your backyard in 1846 would have been regarded as a lunatic.
But that’s where we are today. People sit in bewilderment at public gatherings as land acknowledgements thank the recently invented and unpronounceable names of tribes for something not quite clear, homeowners worry that the home ownership they thought was sacred will be taken from them, and taxpayers wonder if there is any end to the number of Indian claims coming down the pike. And in the meantime, people claiming to be members of the hundreds of tribes squabble with one another.
It wasn’t supposed to be this way. Our founders very carefully created a country where everyone was to be equal. The backwardness of tribalism was to be ended, and Musqueam, Cowichans, and the rest were intended to be “Canadians,” first and foremost, just like the English, Irish, Ukrainians, Pakistanis, and all the rest who built this land. They were no longer to be members of a tribe. They were to be Canadians. In fact, treaties were designed in large part to end the inter-tribal warring that was bedeviling the West, and to assimilate (integrate, if you like that term better) into the Canadian whole.
“Musqueam” and “Squamish” in reality are a few thousand people living on a handful of reserves. In fact, the total number of Indians living on reserves in BC represents only 1.3% of BC’s total population. And calling people “Musqueam” or “Squamish” is itself misleading. These people are as interbred with other tribes and other ethnicities as are any other Canadians. The fact that they might wear special hats or costumes should not be allowed to mislead us. They are just like us, even if they pretend to be something entirely different. Don’t let the drumming fool you.
And, unfortunately, reserve populations are the least productive — by far — of any of BC’s many demographic groups. Exactly why our courts and BC’s politicians seem so determined to put so much racial power, and so much of the money of the British, Sikh, etc., citizens in the hands of people who did the least to earn it is a question that needs to be asked, as is the question of why reserve populations should have special powers or privileges that are denied to the rest of the population.
But the intention of our Founders was clear: Every Canadian was to be equal in all respects.
Indians were indeed given special legal protection in the form of reserves and special legislation, but all of that was supposed to be temporary until they were able to compete in the modern economy. Treaties were written to provide some compensation, as well as to provide places to live, but those were modest documents as well. Indians had the right to hunt on unoccupied Crown land, but only until it was needed by the government for any other purpose.
In short, the plan was to work Indians into Canadian society — to be assimilated — in the same way that immigrants were being assimilated. It was a sound plan. Everyone would be educated in the same way. Everyone in the West would speak English.
This didn’t mean that the various ethnic groups would be prevented in any way from honouring their ethnicity in any way they chose. Scots could be as Scottish as they chose to be. Ditto for Irish, Ukrainians, and Indians.
The plan was working quite well. It is true that most Indians lag behind. That was to be expected given the fact that education levels were lower, etc. But many overcame those obstacles and became as successful as anyone else. The premier of my province, Wab Kinew, is an Indian, for example. So what? He didn’t rise to that position because of special privileges — UNDRIP or any of the other racial add-ons. He just achieved success following the same success formula that works for everyone. Namely, get educated, go where the jobs are, and work hard.
But somehow this perfectly sensible plan went wrong. Canadians who sometimes had only a bit of Indian DNA decided that they would henceforth identify as “Musqueam”, “Cree”, etc., instead of as Canadians with Indian ancestry. Tribalism was suddenly in vogue. “Assimilation” became a dirty word that was equated with “forced assimilation.” And reserves that were originally intended to be temporary places of sanctuary somehow became “First Nations.” Rather suddenly, Canada began to revert to the country of tribes that the explorers encountered when they first ventured west.
But the “First Nation” plan was always a delusion. The great majority of Indian reserves are backward, dependent communities that bear no resemblance to “nations.” In fact, the only solution that makes sense is to provide education and assistance to help dependent Indians move to job centres from these dysfunctional human warehouses, and not to continue pumping money into them.
But the Indian activists who promote more separatism and more money for what they privately refer to as “The Indian Industry” don’t have to live in those hopeless places. Instead, they tend to be academics, bureaucrats, and writers who have long ago escaped from reserves. Too many of these are opportunists who insist on keeping the apartheid system intact and the money flowing. This is understandable because it is in their interest to do so. Squalid reserves are necessary as ammunition to perpetuate this victimhood narrative.
But the odd thing is that our important institutions latched onto this regressive notion of tribal identity — the exact opposite of what Canada was supposed to be about. And strangest of all was that the institution that hitherto had been our most instinctively conservative institution of all — our Supreme Court of Canada (SCC) — became the biggest disciple of this modern tribal model of all. The SCC proceeded to literally invent concepts, like “Aboriginal Title” and “Duty to Consult” that completely bought into the radical vision of each Indian “nation” being separate from every other, and separate from the nation that was Canada. The SCC was probably heavily influenced by the 1996 Royal Commission on Aboriginal Peoples Report (RCAP), written in 1996.
That report strongly argued for the “First Nations” apartheid model, and against assimilation. It was probably no coincidence that the radical SCC Delgamuukw decision came out in 1997, a year after the RCAP Report was released.
And Delgamuukw was a game changer. In that case, and the line of cases following it, the SCC basically threw out established law in order to give the Indian claimants what they wanted. For everyone else, claims a hundred years or more old would be statute-barred for the perfectly valid reason that ancient claims are almost impossible to adjudicate accurately. A claimant must make his or her claim within a reasonable amount of time. But not for Indian claims. The SCC allows them to make claims, like the Cowichan claim, that go back to 1846 and earlier.
For everyone else, the accepted rules of evidence stop them from making claims that are based on hearsay. Not for Indian claims. The court in Cowichan not only let Indian claimants use hearsay, but also use seventh-hand hearsay based on what some claimed ancestor supposedly told his ancestor long ago in some imagined blueberry patch. And the SCC even created a special designation for this ancient hearsay evidence — calling it “indigenous oral history.” It is no such thing. It is folklore, like any other. In court, it should be inadmissible as hearsay.
But, so eager was the court to impose its vision of “reconciliation” on the country that it was prepared to throw out the normal rules and destabilize private property fundamentals to accomplish its history-correcting project. In doing so, the SCC has reinstated a tribal vision of Canada — the exact opposite of what Canada’s founders intended. It has also thoroughly destabilized the most important institution of any successful democracy — the certainty of title. The SCC acted outside Section 35 and abandoned the pursuit of justice to pursue reconciliation instead.
And now, compliant governments, like Eby’s NDP and Justin Trudeau’s Liberal governments (so far, the “Carney” Liberals are no different), are following the court’s lead and putting this extremely regressive tribal vision of the country on overdrive, with their “modern treaties.”
Canadians are beginning to wake up to the implications of these radical cases, like Delgamuukw and Cowichan. They are also beginning to see that both the federal Liberal government and the provincial NDP government are not on their side at all. Both levels of government seem to have taken the side of the radical Indian activists, at the expense of ordinary Canadian homeowners. Our SCC has placed itself firmly on the side of Indian apartheid advocates.
And for those who think that this reckless disregard for property rights will be confined to what Canadians have always called BC — “Lotus Land” — they should think again. Chiefs in the numbered treaty areas (most of western Canada) had always considered themselves to be superior to the chiefs in the “unceded” areas (most of BC) because they were under treaties. Now, they are amazed at what the BC chiefs have been able to get compliant governments to do. And they want in. Discussion is now about concepts, like “co-ownership” and an insistence that no project will be allowed to proceed without their consent. Yes, that means “veto.”
It will not be long before all of the chiefs will be demanding new “modern treaties” that give them the money and control that clever groups, like the “Musqueam,” have been able to extract. New Brunswick, Ontario, Quebec, and the Maritimes are all beginning to see what is in store for them, now that tribalism has returned to Canada.
Meanwhile, a SCC that declares itself to be the most “progressive” in the world actively promotes the most regressive vision — a return to tribalism. This must be reversed. Section 35’s recognition of Aboriginal rights very clearly says “existing Aboriginal rights.” That means “existing” as of 1982. Inventing new Aboriginal rights is not something that the SCC has the authority and jurisdiction to do. Expropriation is within the exclusive power of elected bodies. The court’s duty is to interpret the law and not make it. By effectively purporting to expropriate title from those who have lawfully acquired it, our SCC has exceeded its authority.
Professor Bruce Pardy sets out the long list of SCC decisions that have steadily undermined private property rights and the equally long list of foolish government decisions that have added to this mess. Unless the entire line of cases from Delgamuukw to Cowichan that weaken and undermine property ownership are reversed and/or severely limited, the court risks violence and upheaval. This might sound hyperbolic, but property owners who have lawfully acquired their property through years of hard work and sacrifice will simply not accept having their homes, property, and businesses taken from them by politically appointed judges. And they won’t accept being denied entry into their own public parks either.
What the SCC has done to BC is now becoming apparent. Years of legal uncertainty and litigation are now in store for a province that is already reeling from multiple problems. BC should be Canada’s richest province. Instead, it is steadily declining under this entirely avoidable attack by well-meaning but misguided judges and politicians.
Professor Pardy writes about the need to restore this country to what it was supposed to be from its inception — a country in which all citizens are exactly equal in law without regard to ethnicity, race, or any other superficial difference. But Pardy also offers another intriguing suggestion about how Canada could rid itself of this paralyzingly Indian apartheid “First Nation” obsession. And it has to do with the upcoming Alberta sovereignty referendum. Extending his reasoning only slightly, it is this: There is little chance that the SCC or our hapless politicians will reverse course on the Indian status quo. However, if faced with a “Yes” vote in the Alberta referendum, the federal government and all provinces would be required to open up the constitution on all questions for discussion. Only if the parties had exhausted discussions would Canada be required to let Alberta go. So, for Albertans who want to see Canada stay together, but are completely dissatisfied with the status quo, a “Yes” vote is their only option. This is the only way for them to force open the constitution for topics, like the end of the Indian apartheid system, to be discussed. This would also be their only option to have other important grievances, like equalization, immigration, and the war on fossil fuels and pipelines, to be seriously discussed.
This group of strategic “Yes” voters would have another kick at the can after discussions had ended. They could then vote “Yes” or “No” to Alberta sovereignty.
Pardy’s strategic voting suggestion is an intriguing one. It has not yet received wide attention, but I suspect that as the referendum draws closer, it might appeal to many voters. It would also appeal to those already firmly committed to voting for sovereignty. They would have another large group of “Yes” voters to add to their numbers.
However it is done, Canada must once again become the country our Founders created - a country where every citizen is equal and has exactly the same rights. The Indian Act and reserve system must be phased out, and all racial privileges must be ended. As Peter Best puts it: There is no difference between Indians and any other Canadian.
Our courts and legislatures must recognize that fact if Canada is to be successful.
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