CHARBONNEAU – Privately owned property can exist on Indigenous land
(Image: B.C. Supreme Court)
DESPITE THE ANGER and panic created over the Cowichan court decision, privately owned property (fee simple) can and does exist on Indigenous governed land.
It should be noted that private buildings, hydro facilities, highways, municipal buildings are not part of the transfer. The Crown and private individuals continue to own their improvements.
The difference is that they may now need to negotiate terms (leases, access rights, compensation) with the Cowichan. Such a model exists.
Despite assurances by Indigenous leaders that they have no intention on seizing private properties, some have inflamed that possibility.
MLA Eleanore Sturko accused the provincial government of keeping British Columbians in the dark on the issue.
Robin Junger, Vancouver lawyer and former provincial chief treaty negotiator, said in the Mike Smyth radio show, “Yes, both Aboriginal title and fee simple give the holder the right to use, exclusive right to use the property, to occupy it, to possess it, and to get the benefits of it. How you can possibly have both exist at the same time in the same place is beyond my simple mind’s ability to comprehend.”
You don’t need a complex mind, Robin, to realize that an innovative solution already exists.
There is a hybrid model where private ownership and Indigenous control of the land coexist.
The Haida Gwaii land settlement is an example. Unceded land issues have been addressed without a formal treaty through negotiated governance and shared management between the Crown and the Haida Nation.
The Haida Gwaii Reconciliation Act (2009) recognized the Haida Nation as having decision-making authority, but privately owned land remains unaffected.
Haida Gwaii has become a national model for reconciliation without extinguishment, showing that Indigenous jurisdiction can coexist with the Crown. Settlers’ daily lives are unaffected. Decision-making is shared. The Crown’s ownership claim is no longer treated as absolute.
Now co-managed or jointly decided with Haida authority. Logging, mining, and tourism permits all require Haida approval.
A Haida leader said of the agreement: “We have not ceded the land, but we have chosen to share its care.”
The Haida agreement adds a third model of land reconciliation.
The other two being modern treaties such as the Nisga’a Treaty (2000) in which the Crown no longer owns the land but it remains within Canada’s constitutional framework and court-declared Aboriginal Title such as the case of Tsilhqot’in Nation v. B.C. (2014).
The door is open for a comparable solution on the Cowichan Tribe’s newly acquired land. Justice Barbara Young didn’t deny the possibility. She said that property ownership and Aboriginal title could co-exist: that neither is absolute. However, she made it clear that Aboriginal title is “senior” to fee simple, and would dominate.
Justice Young directed the Crown to decide how to settle ownership where current legal titles overlap with Cowichan’s newly recognized title.
There are ways of owning a home and enjoying the benefits of living on land you don’t own; such as those who own homes and pay leases at the Tk̓emlúps te Secwépemc development of Sun Rivers.
Premier Eby can calm the fears of homeowners by assuring them that an agreement with Cowichan can be negotiated to allow settlers to live peacefully in their own homes.
That’s what everyone wants.
David Charbonneau is a retired TRU electronics instructor who hosts a blog at http://www.eyeviewkamloops.wordpress.com.
ArmchairMayor.ca 
Sorry, but let’s put things in perspective. We just had Remembrance Day. Land claims aside, had it not been for “all of us together”, we would have been doing the goose-step or lost everything to the Imperial Japanese Empire. Surely there is a way where everyone can benefit. It’s going to take some work, some planning and a vision.
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By the way, the hybrid model mentioned by the author of the article is really not something anyone would choose. Imagine having to not only go to government to get a permit, but now add a separate level of equal governance, fees, time, and veto power.
Ask the homeowners on the coast how they like that model.
No thank you. One layer of bureaucracy is quite enough.
Saying “the tribe hasn’t expressed intent to take private property” is irrelevant. Would David accept “trust me bro” on his own property after a decision gives exclusive use to another party?
David seems like a great candidate for a property swap with an impacted owner of the Cowichan decision. We could enjoy his musings as he writes from ground zero while his wealth drops to zero. Somehow I doubt we will see that swap happen.
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Until Mr. C can explain how one piece of land and everything on it can have two separate parties who each can enjoy exclusive use of that property, pay his attempts at propaganda no mind.
There are real consequences to this decision. Owners can’t get mortgages. Property values are effectively zero. No one will touch those properties.
First it was the NDP doing the most to keep this cases (and others) hush. Not notifying impacted property owners. Then it was the NDP refusing to argue the case on the most obvious angle – that fee simple extinguishes all other claims. Now it’s the NDP acolytes doing the rounds in media telling you to not worry about it. Meanwhile the NDP itself is in a panic and doing damage control after realizing how stupid they were in dealing with this case.
What everyone wants is that private property is respected. And that Canada’s actions against Indigenous people are addressed once and for all. Not via perpetual court cases and endless payments. But with a fair and reasonable approach that respects everyone who lives here.
If this case survives appeal, it effectively means the government doesn’t exist. If fee simple was conferred by the Crown to a buyer, and that contract is now null and void, what use is the Crown? Other than a target to be sued to oblivion by buyers than were handed invalid contracts for property bought in good faith.
Is Kamloops next? Let’s see how this shakes out at appeal. Until then, enjoy the chaos and uncertainty brought to you by woke politicians. Haven’t we had enough of this shit already?
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I am not a lawyer. I am, however, a Realtor. From where I sit, this provincial government in almost every way, including choosing not to vigorously defend its constituent’s interests in the Cowichan decision until it is too late, has sold out the interests of 95% of the citizens of BC. With adoption and indeed active implementation of UNDRIP and our own made-in-BC Declaration on the Rights of Indigenous Peoples Act (DRIPA), and now the Cowichan decision, this government has now effectively given full-blown veto to Indigenous peoples on all land use throughout the Province, not just what has been previously deemed Crown or Public Lands. Folks should not need permission to dig a hole in their back yard without Indigenous approval or an archaeological assessment, but taken to its logical conclusion, that is where we could end up. To use the arguments of continued ownership of improvements and cite the Sun Rivers model as examples is disingenuous at best. Folks know exactly what they are buying, and getting, at Sun Rivers and indeed anywhere on TTeS lands, including the fact that they do not and will not ever own the land under their feet. Similarly, if you buy a modular home on a rented pad in a modular home community, you know that you don’t own the land it sits on. Purchasing strata property also involves common ownership of the land, and sole ownership of your improvements/strata lot. These, however, are all choices you can make, with foreknowledge and appropriate Disclosures in hand. To arbitrarily now be told, and be expected to accept without question, that “you can continue to own your improvements, but you don’t really own the land they occupy anymore” flies in the face of common sense, and is, in my view, fraud perpetrated against most of the citizens of this Province. The Cowichan and other Bands have made, frankly, weak assurances that they are not interested in kicking people off their property. However, just in the past couple of days, while acknowledging “he had kind of forgotten about that lawsuit” that TTeS and Skeetchestn filed in 2015, former Skeetchestn chief Ron Ignace basically said that he supposed folks could continue to live on property that they thought they owned but as it turns out they didn’t, and could pay taxes to Bands rather than to municipalities or regional districts. Seriously? Is this the type of massive fraud that our governments are going to sit idly by and let happen? It seems it is, as BC’s current practice is to not argue against Indigenous claims except, perhaps, if they’re in the mood, on appeal. This is a disgrace, and can not be allowed to stand. Many folks entire life savings, and a good portion of their retirement planning, are contained in their home and property. To now have that taken away in an underhanded and after-the-fact manner with no defense from those charged with defending the interests of its citizens is beyond the pale, and they ought to be ashamed of themselves. As citizens and by extension governments, we should not and indeed cannot allow judges to fundamentally wipe out folks personal assets and upset their lives in this way. Besides the fact that this also could be viewed as playing into the NDP/Socialist model of the politics of envy/redistribution of wealth/I’m keeping my wealth and I’m taking yours too, this is a fundamentally wrong and unjust decision that must be overturned on appeal.
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Aboriginal title is a right to use and occupy land for a variety of purposes
2. The use cannot be inconsistent with the nature of a particular First Nations’ historic attachment to the land
Like other aboriginal rights, aboriginal title may be infringed:
HOW?
The “justification” analysis applies
Un-extinguished aboriginal title exists
In British Columbia because:
Land Held in Fee Simple by Non-Aboriginals on land Claimed by Aboriginal:
Courts have decided that those who hold land in fee simple, the land remains theirs.
Fee Simple: Common Law principle that gives complete ownership or interest in land
WHAT DO COURT CONSIDER TO DETERMINE JURISDICTION?
Can be defined by treaty:
For Example:
Nisga’a Treaty sets out law making powers of the Nisga’a, many of which must not be inconsistent with Federal or Provincial laws and all of which are subject to the Charter
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