CHARBONNEAU – N.B. court rules sensibly on Indigenous land claim

IN CONTRAST to the court decision that gave private property in Richmond to the Cowichan Tribe, a New Brunswick’s Court of Appeal has ruled the opposite.

Justice Drapeau ruled that an Aboriginal group cannot seek a declaration of title over private property.

The court concluded that the harm to private property rights would undermine Canada’s efforts at reconciliation with First Nations. Justice Drapeau wrote:

“In my view, a declaration of Aboriginal title over privately owned lands, which, by its very nature, gives the Aboriginal beneficiary exclusive possession, occupation and use, would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”

I couldn’t agree more.

You only have to look at the harm to Aboriginal relations caused by the B.C. court decision that gave the Cowichan Tribes 800 acres.  The apprehension and anger generated has increased animosity and distrust of First Nations.

Kamloops is caught in the middle of the storm that threatens homes in the city.

Kamloopsians fear that a decade-old land claim by Stk’emlupsemc te Secwepemc Nation (SSN) will have courts giving their property to First Nations.

The City of Kamloops has stepped into the fray.

In a joint statement, Kamloops and the Kamloops Indian Band urged calm and peace. Despite the SSN claim, they say that the “fundamentals” of property ownership in Kamloops remain unchanged, and that day-to-day life “continues as normal.

“The SSN Aboriginal Title claim remains in early stages,” the statement said. “No declarations have been made, and the claim does not seek private or City-owned land.”

Justice Drapeau ruled that Aboriginal claim from the Wolastoqey Nation in New Brunswick should proceed only against the Crown and not against private owners.

This reflects the legal principle that Aboriginal title and rights are claimed against the Crown, not private parties.

The historical legal principle provides some clarity in disputes between First Nations and the Crown.

Here’s a brief history of that principle:

When Britain asserted sovereignty over what is now Canada, the Crown acquired radical title to the land.

“Radical” is a legal term that means that the Crown does not fully own the land. Think of radical title as a legal placeholder rather than true ownership.

The Crown’s underlying ownership is limited, or encumbered, by a pre-existing Indigenous interest. First Nations did not lose their pre-existing land rights.

In legal terms, Aboriginal title “burdens” the Crown’s radical title.

The Crown is therefore the legal party that must justify or reconcile relations with Indigenous title, not property owners.

As Aboriginal people have said repeatedly, their beef is not with property owners but with governments.

Under our constitution, Aboriginal and treaty rights pre-exist Canada. The duty of courts is to reconcile those rights.

Previous court cases are consistent with Justice Drapeau’s ruling.

In the Tsilhqot’in Nation case, the court ruled that reconciliation of Indigenous land rights must be done with “the interests of all Canadians.”

It seems that the judge in the Cowichan decision erred in not considering the harm to reconciliation with First Nations, and in not considering the interests of private property owners in Richmond.

David Charbonneau is a retired TRU electronics instructor who hosts a blog at http://www.eyeviewkamloops.wordpress.com.