Aboriginal Title and Private Property A WAY FORWARD FOR ISLANDS TRUST

Transcription

1 Aboriginal Title and Private Property A WAY FORWARD FOR ISLANDS TRUST

2 Four Key Questions: Part 1: How did the islands come to appear empty for the taking? Part 2: Why have First Nations interest been invisible on the islands for over a century? Part 3: How can Aboriginal title and private property co-exist? Part 4: Is Reconciliation with local First Nations a challenge or an opportunity for the Lasqueti Island community?

3 PART 1: How did the islands come to appear empty for the taking?

4 Indigenous Depopulation by European Diseases 1782/83 EPIDEMIC: DEATH TOLL SIMILAR TO 14 TH C. BLACK DEATH 80 YEARS LATER 1862/63 EPIDEMIC

5 THE SALISH SEA Dense Population & Rich and Sophisticated Culture 14,000 year old village on the central BC coast Society of currency, social classes and manufacturing for ~5000 years Mild climate, rich resources fostered most densely populated region in Canada

6 PART 2: Why have First Nations interest been invisible on the islands for over a century?

7 Multiple and Consecutive Waves of Racial Oppression, for 150 years First Wave: 1877 Reserve System Devastated Population from diseases by 1870s The 1877 Reserve Commission: 20 acres/family Governor Joseph Trutch: 90+% Land Reduction The McBride Commission: more land reduction = Devastated Economy by 1910s

8 Second Wave: Indian Act of 1876 Forced Residential Schools by 1884 NO LAND/NO RIGHTS, AND THE PASS SYSTEM OVER 80 YEARS OF RESIDENTIAL SCHOOLS

9 Why can t they just forget it, and move on? WHY CAN T YOU JUST REMEMBER IT? WE ARE ALL TREATY PEOPLE

10 PART 3: How can Aboriginal title and private property co-exist?

11 Three Legal Key Points 1. Tsilhqot in case omitted private property on purpose. No Supreme Court of Canada case has addressed Aboriginal title over private property directly. 2. Using case law implications, it is widely believed in the legal community that Aboriginal title CAN be proven over fee simple held lands. 3. Protection of property rights? Anything but reassuring.

12 Compare and Contrast: Origins and Fundamental Nature ABORIGINAL TITLE Protected by the Constitution of Canada, since 1982 Existing since time immemorial and will exist into the future in perpetuity Treaties do not extinguish Aboriginal title; they are an additional layer of rights over and above They are communally owned, not owned by an individual PRIVATE PROPERTY Protected by statutory laws only Source is from assumed Crown lands Crown lands could only be assumed legally through conquest, terra nullius or by treaty (1763 Royal Proclamation of the Crown) None of those conditions exist for the lands of Lasqueti Island Any encumbrances on Crown lands also are encumbrances on any fee simple lands

13 Compare and Contrast: Limitation of Rights and Protection ABORIGINAL TITLE Aboriginal title guarantees the right to exclusive use and occupation Only one limitation: that any use (i.e economic benefit, etc.) cannot impede any future generations benefit from the land PRIVATE PROPERTY Private property is defined in common law as the right to exclusive use and occupation Only a bundle of rights ; multiple limitations include no rights beyond the water table, and bylaw/zoning restrictions

14 Compare and Contrast: Infringement & Compensation ABORIGINAL TITLE Where there are multiple Nations with overlapping Aboriginal title on the same lands, this strengthens the claim of Aboriginal title (this is separate from additional treaty rights) Federal infringement on Aboriginal title requires fair market compensation and significant justification First Nations still working through primary compensation claims for breaches of treaties, then will focus on compensation for Aboriginal title PRIVATE PROPERTY The Crown can infringe on private property for highways, schools, municipal boundaries, etc. Fair market compensation is usual, but not required by law(fee simple lands are held in trust from the Crown ) Example of the emerging era of compensation for First Nations for lands inappropriately dispensed as fee simple lands (Nanaimo, Cadboro Bay case )

15 PART 4: Reconciliation is a choice. Resistance or Listening to Each other

16 Listening to Each Other: Let s Decolonize Already.

17 Successful Reconciliation Projects Kootenay Lake Partnership Project Pender Harbour Dock Management Plan with Sechelt First Nation