Recognizing Aboriginal Title is not to abolish ownership rights, but to maintain them

It would be difficult to overestimate the meaning of the recent decision of the Supreme Court of British Columbia in the case of Cowichan -tribes vs. Canada. Nevertheless, many people have done their best.

“BC Supreme Court is taking an ax to private property rights,” led the head One column. The decision described “the end of the ownership rights”, another indicated. Other commentators limited themselves to worrying the “risks“And”insecurity“Coming from the decision.

Which is fair enough. But the decision was interpreted, or whatever the consequences were predicted to flow out, the only thing I have not seen anyone is saying that it was wrong. I have not seen anyone who disputed the basic facts of the case. Neither, in addition to a few raised eyebrows, I have seen anyone question the judge’s reasoning. The closest to a criticism of the decision was the columnist who called it ‘extreme’. But the justification for that epitheton seemed to rest more in the predicted consequences than in every internal error of the decision itself.

This is very much with the response to other recent judgments of the court, and the broader story – the courts have run away with the constitution – they try to convey. When critics deny this or that example of ‘judicial activism’, nine times out of 10 appears to be a decision that they do not agree with. Or rather, no: they don’t even disagree with it, as such – they just don’t like the result. It is awkward and because it is awkward, it must be wrong.

In the present case, the consequences of the decision of the judge, maintaining the claims of the Cowichan tribes and other descendants of the historical Cowichan nation are a considerable (about 800 hectare) lump of land in Richmond, BC, almost certainly far-reaching, although now almost as Catofflymic and claimed.

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The territory, which the Cowichan mentions Tl’uqtinus, is currently divided between the federal government, the Vancouver Fraser Port Authority, the city of Richmond, and some private owners of ‘reimbursements’. The territory is also claimed by the TSAWAGEN FIRST Nation and the Musqueam Indian Band, who opposed the Cowichan Claim in court.

The case is the third party that the Aboriginal title explains, first defined by the Supreme Court in 1997 Delgamuukw case, to a specific plot country (the first was the Tsilhqot’in Decision in 2014), and the first to discover that it applied to private real estate.

Yet, just like the Tsilhqot’in, the Cowichan did not bring their claim to private landowners, nor did they try to invalidate their interests. The judge also did not discover that the Aboriginal title is easily owned compensation. Indeed, it was the federal government and her colleagues who claimed the incompatible of the two.

Instead, the judge discovered that the two could co -exist: neither of them is absolutely. Aboriginal title is certainly ‘senior’ to easily reimburse and would burden any simple title with a fee. How would it be left to further negotiations, in particular between the Kroon and the relevant Aboriginal title holders.

Is that the end of property rights? Or is it its expansion, to a group that had previously denied their rights? The basis of the Cowichan -Claim, determined by more than 500 days of testimonies and thousands of pages of evidence, was the same as in earlier cases: earlier occupancy rate – prior, that is to say to the statement of crown sovereignty in 1846 – along with the tests of sufficient, continuity and exclusivity in Delgamuukw and refined in Tsilqot’in.

Of course, the colonial governors would have taken quite a different view of the Aboriginal title at the time. But they were also confronted with the practical problem of establishing control over the territory in the light of determined native opposition. The Cowichan in particular was considered particularly warlike. They could hardly triumph against the military power of the British Empire. But they can cause many problems.

So the Governor of British Columbia at the time, James Douglas, closed a deal. He told the Cowichan, in the paraphrasing of the judge, that “the queen had given him a special indictment of treating them with justice and humanity, as long as they stayed in peace with the settlements.” True to his word, Douglas has appropriated certain countries, including the village in Tl’uqtinus, as future Indian reserves.

Only it never happened. The Cowichan countries were later sold to settlers, without the permission of the Cowichan or even knowledge. The first buyer was Richard Moody, whose task as chief commissioner of Lands and Works for the Colony of British Columbia should be “to ensure that Indian reserves were created at locations of Indian settlements.”

The sale of these countries was not only contrary, at least in spirit, of the solemn promises of Douglas, and not only in violation of his order that the countries put aside aside: it was downright illegal. According to Article 13 The BC conditions of Union that admit the territory to the Federation, the province was imposed by the sale of Indian settlements. Only the federal government could extinguish the Aboriginal title.

Is it awkward to have to recognize all of this now, more than 150 years later? Yes that’s it. It would have been awkward for governments in the 19th century to adhere to the promises they had made. But they first put their own convenience and as such passed the inconvenience to future generations – as they certainly did at the Cowichan. The inconvenience with which the contemporary reimbursement of the territory is now confronted with simple owners is only the downside of the discomfort with which the Cowichan has had to live in the last one and a half century.

It is sufficient to determine the title of the Cowichan to the countries they held earlier occupation. But the statements of Douglas, and the actions of later governments, speak to a different matter: the obligations of the crown, in dealing with indigenous groups. In the wonderful language of Canadian constitutional law, they involve ‘the honor of the crown’.

The British had the power to assert their sovereignty across the countries of Canada, but with that power, our courts found, a corresponding responsibility: honestly and honorably handling those they had displaced. Douglas’ promise was both a statement of that obligation and a trigger. After he bought the collaboration of the Cowichan, he and his descendants had a duty to live in their side of the bargain.

That implicit bargain remains in place today. It emphasizes how much the entire country benefits from settling these issues via the courts, as we have since the Calder case in 1973 and even more since the approval of the 1982 Constitution, whose section 35 ‘existing Aboriginal and Convention Rights’ recognizes and confirms.

After they have won a number of important victories in court, indigenous groups are being invested heavily in the legal process, so that they are also inclined to accept the strange defeat. It is unpleasant to imagine the answer if this country follows the advice of a National Postcolumnist and to handle the Cowichan decision if the pretext for “changing or outright removal of section 35 from the Constitution.”

In a sense, we are all working on a huge experiment in Coasean negotiations. Ronald Coase won the Nobel Prize for the Economy, partly for his work on how conflicts about resources can be resolved through the allocation of property rights. In a world where ownership rights are clearly defined – and enforceable by an impartial third party – disputes do not have to be determined by Regulation. It is rather open to the parties to make their way to a mutual beneficial result.

In the canonical example, if a factory is contaminated the air next to a wax, then, depending on how ownership rights are allocated, the factory can pay the laundry to continue with the broadcast, or the laundry could pay the factory to stop. It sounds abstracted, but it is the basis of, for example, modern emissions trading markets.

The process in which colonial governments compensated Indian groups in exchange for recognition of the sovereignty of the crown, whether it has been reserved by land or tolerated treaties or other incentives, instead of only taking them by violence, can be considered a rough form of negotiations on Coasean.

Only the process was not the type of symmetrical negotiating relationship Coase’s statement in mind. Instead of each side that held ownership rights, defined by a common set of laws, the Kroon did not recognize the Aboriginal title, certainly not to the point that they are bound by it. And crucial was that there was no independent referee to enforce an arrangement. The crown decided whether the crown had realized its commitments.

The modern era of Kroon-Inhemian relations that started with Calder Can be considered as a reset of negotiations on more real coasean lines. Section 35, Aboriginal title, the honor of the crown, all served to put the negotiations on more fair foot. Whatever that is, it is not the end of property rights. It is demonstrably a new beginning.

Note of the editors: An earlier version of this column wrongly reported that the Cowichan -Stame ruling is the second to explain the indigenous title to a specific plot country. This version has been corrected ..