Indigenous Writes

by Chelsea Vowel

  Modern surrender clauses

  Now, the Feds use new jargon. First, they make you feel good with nonderogation clauses that generally look like this one in the Yukon Northern Affairs Program Devolution Transfer Agreement:

  Nothing in this Agreement shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.9

  Blah, blah, blah. Basically, this says you aren’t giving up your Aboriginal rights, your section 35 rights, or any treaty rights you may have. Whew, dodged that bullet!

  Except, the next phase of these newer, kinder settlement agreements often has a clause like this (from a different document):

  Notwithstanding (the non-derogation clause) the Parties agree that any person who holds or acquires any title, right or interest…shall continue to be entitled to the quiet enjoyment of their said title, right or interest…without risk of a claim, legal or otherwise, by the First nation (or any entity claiming on its behalf) based on any existing Aboriginal or treaty right to the said lands.10

  No evil “surrender/release/cede/extinguishment” words in there; nice, hey? Except, what this is actually saying is: “You aren’t giving up any Aboriginal, section 35, or treaty rights, you might have, but you agree never, ever to exercise or claim those rights once you sign this Agreement.”

  It’s slightly more complicated than that, mind you. There is a patchwork of case law out there that regulates what rights can be exercised on Crown lands versus private lands, and what have you. Some of that could still apply, but you’d never be able to take either a private individual or the Crown to court over a violation of the rights you supposedly still have, because the courts would look at this clause you signed and say, “You promised not to do that.”

  You see, your rights aren’t gone, they are just not exercisable. Not really an important on-the-ground difference, but much nicer sounding.

  It is very important to the federal government that landowners feel confident they do actually own the land they are occupying, and that the Crown doesn’t end up in court as a third party if a First Nation sues a private individual for squatting. That is the ultimate goal in these negotiations and is not something Canada is willing to give up. So, you may be trying to get compensation for various breaches, but as you negotiate for this compensation, you will face the effective extinguishment of your rights over the lands in question.

  This is about relationships, not release forms.

  The wording has changed, sure. It’s confusing as heck and not immediately clear to anyone who reads it. Wrapped up in legal jargon and huge run-on sentences that put you to sleep, it can be difficult to notice you are effectively giving up rights in order to finally settle a grievance you’ve been pursuing for a hundred years – after being in a specific claims process for the last 20 of those hundred years.

  I can understand why it can seem worth it. If you can settle for a few million dollars, that means immediate cash injected into your community – and there isn’t a single Indigenous community in this country that doesn’t need it. You can finally say to your people, “We have settled this long-standing problem. It is over.” Considering the incredible time, energy, and emotional investment that go into these claims, getting closure is not something anyone can take lightly. Another option is to not sign, and eventually, limitation periods may run out and you lose your nontitle related rights because you didn’t take it to court on time. Or, Canada just holds out forever and you get not one dollar for the damage that has been done. Those are real possibilities.

  What bothers me about this is not that First Nations are signing these agreements. Not really. That used to bother me, but I have talked to enough people on the ground to realize no one is folding. Sometimes you go to court, sometimes you negotiate, sometimes you block roads, but you never, ever truly accept you are signing away your rights. Indigenous peoples have to do this on paper sometimes because that is what is required to survive. But in our hearts, we know damn well this is not going to stop us in the future from exercising those rights.

  What bothers me is this: a treaty is an ongoing relationship. That’s how it is in every other situation that does not involve Indigenous peoples. Treaties are nation-to-nation agreements that mediate relationships, and they can and should be revisited as the relationship progresses. Indigenous peoples know this; this is how we approach treaties and agreements with Canada. However, Canada does not seem to understand this. They want to settle everything and never look back. Patch up the holes in their supposed Crown title and put the whole thing to bed.

  Well, it isn’t that easy, folks. Canada needs to stop trying to make us go away – to stop “recognizing” our rights with one side of the mouth and restricting or extinguishing them out the other side.

  That is not going to happen within the practice of Aboriginal law, however. Nope. Since Delgamuukw and Marshall,11 Aboriginal law has been all about “reasonable justifications for infringement” of Indigenous rights instead of building a real relationship with Indigenous peoples. Canada cannot seem to kick its own bad habits.

  NOTES

  1.Jay Makarenko, “The Indian Act: Historical Overview,” Judicial System and Legal Issues (2008), accessed December 9, 2015, http://mapleleafweb.com/features/the-indian-act-historical-overview.

  2.The Pass System, Tamarack Productions, 2015. http://www.tamarackproductions.com/the-pass-system/. This film contains information on the pass system that includes interviews with Elders.

  3.Indigenous and Northern Affairs, “Treaty Texts – Treaty 6,” accessed December 9, 2015, http://www.aadnc-aandc.gc.ca/eng/1100100028710/1100100028783.

  4.Indigenous and Northern Affairs, “Treaty Texts,” accessed December 9, 2015, http://www.aadnc-aandc.gc.ca/eng/1370373165583/1370373202340.

  5.The Confederacy of Treaty Six First Nations, “Fundamental Treaty Principles,” accessed December 9, 2015, http://www.treatysix.org/about_principals.html (original emphasis).

  6.Delgamuukw v. British Columbia, 1997, [1997] 3 SCR 1010.

  7.Russell Diabo, “Canada: Prime Minister Harper Launches First Nations ‘Termination Plan,’” accessed December 9, 2015, http://www.globalresearch.ca/canada-prime-minister-harper-launches-first-nations-termination-plan/5318362.

  8.Not all Settlement Agreements are publicly available. I had access to this one when doing research on Settlement Agreements at a law firm, but I am not able to find another copy to provide proper notes. However, you can see some of the language, particularly “absolutely surrender the lands” in the Order in Council authorizing acceptance of the Settlement Agreement: http://www.pco-bcp.gc.ca/oic-ddc.asp?lang=eng&page=secretariats&dosearch=search+/+list&pg=96&viewattach=29152&blndisplayflg=1.

  9.INAC, “Yukon Northern Affairs Program Devolution Transfer Agreement,” §1.6, accessed December 9, 2015, http://www.aadnc-aandc.gc.ca/eng/1297283624739/1297283711723.

  10.This was an actual clause from a confidential proposed Settlement Agreement that came across my desk. Keep your eye out for this sort of wording.

  11.R. v. Marshall [1999] 3 SCR 456 (known as Marshall 1), and R. v. Marshall [1999] 3 SCR 533 (known as Marshall 2).

  29

  Why Don’t First Nations Just Leave the Reserve?

  Reserves Are Not the Problem

  This is a question that is asked again and again whenever there is a story in the news about lack of potable water on-reserve, or housing problems, or, basically, anything to do with First Nations: “Why not move?”

  As usual, before I can answer that question, we need to take a look at what reserves actually are. You might think you know this, and perhaps you’re impatient to get to the point, but I’ve found this isn’t a concept that is nearly as well understood as folks think it is.

  There are almost 2300 Indian reserves in Canada, nearly half of which are in British Columbia.1 That might sound l
ike a lot, but keep in mind many of these are “postage stamp” reserves – very small in size. The Canyon Lake reserve, part of the Nadleh Whut’en First Nation in British Columbia, is only four hectares. Another Nadleh Whut’en reserve is six hectares.2 To get a sense of the amount of land we’re talking about here, most sports fields are nearly a hectare in size.3 That’s about 1.5 city blocks.

  Many people make the mistake of thinking First Nation = reserve, but it doesn’t quite work that way.

  There are more than 600 First Nations in Canada, and so most First Nations have more than one reserve.4 One First Nation might have a few reserves bordering one another, making it possible to think of these reserves as one reserve, or one piece of land. For example, Sawridge First Nation in Alberta has two reserves very close to each other: one is 906.5 hectares and the other is 1236.8 hectares. It makes sense to think of these reserves as being one piece of land even though, legally, they aren’t.5

  However, it is very common for a First Nation to have reserves that do not border one another. Alexis Nakota Sioux Nation in Alberta is an example of this, with four reserves. One is past Whitecourt, which is northwest of Edmonton, two are southeast of Hinton (a significant distance from Whitecourt!), and the fourth is about an hour’s drive northwest of Edmonton.6 Most members of Alexis Nakota Sioux Nation live on the reserve that is northwest of Edmonton, and the other pieces of land are used for hunting, berry and medicine picking, and so on.7

  In total, Indian reserves comprise nearly 28 000 square kilometres, which is about the size of Belgium.8 This may sound impressive, until you realize you can fit Belgium into Canada 326.8 times. It sounds even less impressive when you understand that reserves account for only 0.28 percent of all the land in Canada. That’s just slightly more than one quarter of 1 percent – a speck.

  Wow.

  What’s the deal with land ownership on-reserve? It’s communal or something, right?

  I want to make sure we’re clear on how land ownership works off-reserve first. If you’re sick of this approach already, imagine being my daughters! Whenever they ask a seemingly simple question like, “Why is the sky blue?” I end up starting with, “Well, let’s talk about what the colour blue is first.” It’s how my mind works, and it helps me anticipate questions or misunderstandings that almost invariably arise during these kinds of explanations. My thanks for your continued patience!

  Property law in Canada comes from English common law for the most part, though in Quebec there is a Civil Code regime, which originated in France. Canadian property law then has its origins in the feudal system from ye olden European days of yore. Under this system, the Crown is the real owner of all the lands in Canada, but it can grant people ownership rights to the use of land.

  If you are a Canadian who owns a piece of land, you have certain ownership rights, but the land itself does not really belong to you. You could not, for example, declare yourself a sovereign micronation and split off from Canada.9 Despite this legal specificity, we usually just refer to land ownership as “land ownership” rather than “a bundle of rights” and leave it at that.

  The highest ownership interest possible in land is known as the “fee simple.” It is an absolute estate in land marked by the fact that the land in question is alienable, divisible, and descendible. All that means is you can sell it (getting rid of your property rights), you can split the land up into pieces (sell them, rent them, whatever), and you can pass the land down to your heirs. Theoretically, your land could remain in your family’s possession forever.

  In Canada, that generally means you own land but not necessarily the subsurface rights to things like gravel, coal, or oil. There are exceptions to this, but work with me. So, you own the land down to a certain depth, and you can do with it what you want. You can rent it out, sell it, or pass it on to your descendants. It’s yours as much as land can be in Canada.

  There may be restrictions on how you can use your land, based on legislation or bylaws where you live, but the restrictions tend to be the least onerous possible to respect your property rights. The Crown can expropriate your land if it really needs to – by which I mean seize your land and kick you off it – but they must have a compelling public-interest reason to do so, and you must be compensated if this happens. If you die, and you have absolutely no heirs to pass it down to, the land reverts back to the Crown.

  If you are a Canadian with fee-simple land ownership, and you want to build a home on your land, but you don’t have the sôniyaws,10 you can borrow money from the bank in the form of a mortgage. Or, say you just want a loan for something else. In both cases, the bank requires that you put your land up as collateral, meaning the bank can take your land and sell it off if you default on your mortgage or loan. It protects the bank, financially.

  Another kind of property ownership arrangement that is quite common is a trust. In a trust, one person manages the property in question, but the property itself belongs to the beneficiary. The trustee is supposed to manage the property in such a way that it benefits the beneficiary (the actual owner). Confused? Well, consider Batman.

  Bruce Wayne inherited a whole bunch of property when he was a child, due to the unfortunate deaths of his parents, but the court would have appointed him a trustee until he reached the age of majority. Perhaps that trustee was Alfred. Let’s just pretend it was.

  So, Alfred didn’t actually own any of Bruce’s property, but he had the right to make decisions about how to maintain and use the property – maybe rent out the guest house, or invest in topiary – and he was able to spend money from Bruce’s estate to do so. Bruce would not have had any say in these decisions if Alfred chose not to listen to him. Alfred was simply managing Bruce’s property, for Bruce’s benefit. It goes like this:

  The Wayne Estate: The trust, the actual property.

  Little Bruce Wayne: Beneficiary, actual owner of the Wayne Estate, but unable to make decisions about what to do with it until he grows up and becomes Batman.

  Alfred: Trustee, does not own the Wayne Estate, but can make decisions about what to do with it, as long as those decisions are to the benefit of young Bruce Wayne.

  Cool. I’m clear. So, what about reserves?

  Reserve lands are not fee simple, and despite the way the Indian Act words things, they are not held in trust, either.

  Reserves are set aside for the exclusive use of a First Nation. They are actually a kind of private property, and you can be charged under section 30 of the Indian Act for trespass if you enter a reserve without permission.11 However, the Indian Act also makes it clear that “no Indian is lawfully in possession of land in a reserve,” so this is not the kind of private property you may be thinking of.12

  Reserve lands cannot be put up as collateral for loans or anything else, because they cannot be seized. They are not owned individually, so they cannot be sold off. Of course, this causes all sorts of problems when someone wants to get a loan to build a house, or start a business, but there are various ways around this, including Ministerial Loan Guarantees and so on. While these complications can be frustrating, they have helped prevent further erosion of a land base for First Nations.

  Remember that fee-simple lands are “alienable, divisible, and descendible.” Reserve lands cannot be alienated (sold or given away) to anyone except the Crown. They are not divisible in that they cannot be split up among members in a permanent way that changes the nature of their use from communal to individual. They are not descendible in the sense that they cannot be permanently passed down to specific descendants. The right to use and benefit from the land belongs to the band, not to specific people within the band.

  Now, look at the Indian Act definition of reserves:

  …reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for th
e use and benefit of the band.13

  “For the use and benefit” sounds an awful lot like a trust relationship, where the Crown would be holding reserve lands for the benefit of First Nations, but First Nations themselves actually own the land. Canadian law, however, says this is not how it works. Neither fee simple nor a trust, reserve lands (like so many things having to do with Indigenous peoples) are in a special category called sui generis, which basically just means “unique” and “we’ll figure it out as we go.”

  Reserve lands are lands “set aside.” Set aside from what, you might ask? Well, as you saw in chapter 27, the Crown laid claim to all of the lands in Canada, but is very sketchy on the details as to how this claim actually came about or can continue to be defended. Nonetheless, this claim is at the foundation of the Canadian state, and, therefore, is not seriously questioned in any way by the Canadian state itself. So, when Canada talks about “setting aside” lands for the use of First Nations, this means Canada believes it owns all the land and has the right to reserve little areas for First Nations to live on.

  Let’s review, because this is a bit odd. Reserves are located on Crown land (land owned by Canada). The Crown holds these lands for the use and benefit of Indians, meaning First Nations people have the right to live on and use those lands. However, the Crown is the one calling the shots when it comes to how those lands are managed. First Nations do not have legal title to those lands (which they would, if this were actually a trust relationship).

  Basically, First Nations only have control over reserves if the Crown chooses to give them that control. Which – as anyone who was asked as a child, “Do you want to wear the red pyjamas or the blue pyjamas?” knows – isn’t really control at all.

  Originally, reserves were set up as a civilizing project, forcing First Nations to settle in one place (chosen by the Crown) so they could turn their attention and labour toward whatever the Crown chose – like farming and going to church. This, coincidentally, freed up all sorts of lands for settlers to move onto. On the other hand, it also ensured there were some lands First Nations could still cling to.