Vancouver declares itself founded on unceded territory

[crazy_eoj]

Welcome to BC.

Business is Closed.

[J epworth]

Originally Posted by polak

I'd love to see the physical title that these first nations people claim superscedes the one belonging to the City of Vancouver...

Royal proclamation in 1763 on how native land could legally be acquired in North America gives title to the people living on that land at that time. To hand over title treaties needed to be signed, reservations set aside and commitments agreed upon.

Hundred years later, it was acknowledged that through colonists it had been taught and accepted to the first nations people of British Columbia that they had title to their hunting grounds:
"
...in the case of the Indians of Vancouver Island and British Columbia Her Majesty’s Government earnestly wish that when the advancing requirements of colonization press upon lands occupied by members of that race, measures of liberality and justice may be adopted for compensating them for surrender of the territory which they have been taught to regard as their own."
Lord Carnarvon to Governor James Douglas, 1859


Wasn't until after BC was formed as a part of Canada and City of Vancouver was over a decade old when the claims began to change to think that Indian rights were only a moral right, not a legal right, so they were "allowed" to expand into previously accepted first nations hunting grounds. Just because they didn't have a written language before colonists came over doesn't mean there isn't precedence and physical proof to their legal claim to land titles.

[terminator]

Originally Posted by Keselke

In after terrible Vancouver/Canucks jokes/puns

And yet another useless post. Just like this one.

[rubecube]

Originally Posted by 19Yzerman19

The basis for their ruling was essentially, "look, the trial judge found that aboriginal title existed here based on a set of facts that he was convinced by. Since there was evidence to support his view that those facts were the right ones, he did not commit a palpable and overriding error, which is the standard of review to overturn a finding of fact by a lower court judge. So we're not going to mess with his decision."

I would not characterize this as a huge change in the law of aboriginal title, though it does clarify some things and will allow the trial level decision to be relied on in advancing claims. I guess what I'm saying is it's a boon to those seeking to advance new claims but it is not a revolutionary, landscape-altering decision I don't think (again, having only read the headnote).

I could be wrong, but I thought the original decision in 2007 had to do with land claims that were based around oral claims and tradition as opposed to written contract, but I could be way off base.

[19Yzerman19]

Aboriginal title claims based on non-written (and certainly non-contractual) evidence like oral histories have been permitted since at least the Delgamuukw decision nearly 20 years ago. Before, probably, but Delgamuukw made it super explicit.

[Rutuu]

Does any of this stuff go on in Europe? I mean my "people" were invited to lands near Russia to settle by Catherine the Great then they were kicked out again in the early 1900s...can I go tell some Romanian farmer near the Black Sea he "owes" me?

Honest question?

[rubecube]

Originally Posted by 19Yzerman19

Aboriginal title claims based on non-written (and certainly non-contractual) evidence like oral histories have been permitted since at least the Delgamuukw decision nearly 20 years ago. Before, probably, but Delgamuukw made it super explicit.

Ah okay, I'm getting the two confused then. I'll have to go read this one more when I have time tonight.

[rubecube]

Originally Posted by 19Yzerman19

Aboriginal title claims based on non-written (and certainly non-contractual) evidence like oral histories have been permitted since at least the Delgamuukw decision nearly 20 years ago. Before, probably, but Delgamuukw made it super explicit.

So I was watching the news last night and from what I gathered, this does stretch back to Delgamuukw, in that the SC specifically mentioned that they would not rule on the issue of aboriginal title in that case.

[Street Pharmacist]

Originally Posted by FlamesAddiction

They were definitely conquered. If not by gunpoint, than by policy and subjugation. Conquest doesn't need to be by gun point, only by force.

It's been the plight of nomadic people around the world that eventually, a civilization establishes itself. With a few exceptions, First Nations in Canada were largely nomadic and few in numbers. Much of Canada at the time was unoccupied and undiscovered to First Nations and white people alike.

1) These lands under dispute were not conquered by any definition. Just the legalities were essentially ignored. If that is conquest, I'm gonna conquest your house and move in

2) Most of the country is not disputed native lands, so I'm not sure what you're getting at with the nomadic comment. Natives are not staking claim to the entire country, only to specific which they have a previously agreed upon treaty that has never been taken away. People simply ignored it

[19Yzerman19]

Originally Posted by rubecube

So I was watching the news last night and from what I gathered, this does stretch back to Delgamuukw, in that the SC specifically mentioned that they would not rule on the issue of aboriginal title in that case.

Not sure how this is relevant. Delgamuukw - as just discussed - dealt with the use of oral histories as a source of evidence and explicitly approved that evidence as a basis for establishing aboriginal title.

There is plenty of jurisprudence on the nature of aboriginal title, which is how the SCC in this case was able to say that the trial judge applied the correct established legal test. It's always helpful to get commentary from the SCC on basically anything, because it's absolute authority for whatever they say, though, including affirming existing legal tests.

[rubecube]

Originally Posted by 19Yzerman19

Not sure how this is relevant. Delgamuukw - as just discussed - dealt with the use of oral histories as a source of evidence and explicitly approved that evidence as a basis for establishing aboriginal title.

There is plenty of jurisprudence on the nature of aboriginal title, which is how the SCC in this case was able to say that the trial judge applied the correct established legal test. It's always helpful to get commentary from the SCC on basically anything, because it's absolute authority for whatever they say, though, including affirming existing legal tests.

I think I phrased that poorly. They interviewed one of the lawyers involved who said he'd be working on this since the mid-90s and made mention of previous cases where the issue of title hadn't been determined. In the Delgamuukw decision, the SC does make mention to issues surrounding aboriginal title and ownership that it could not resolve in that particular case. Maybe I'm drawing a connection where there isn't one. I'm certainly not an expert. I just wasn't aware of any major cases between Delgamuukw and the 2007 case that seemed to specifically revolve around title and ownership.

[19Yzerman19]

It's always important when the SCC rules on an issue, even if they don't change anything. The General Anti Avoidance Rule in tax is the most obvious example I can think of - every time the SCC decides on it, they usually re-affirm their 2006 judgment, yet it's always regarded as a critically important decision. Same here. I'm not seeing anything in this judgment that is groundbreaking or really alters the landscape on title, but because it's the SCC saying it, it's inherently a big deal.

The point there is, this should not be a gateway to a sudden influx of new title claims that weren't available before, I don't think. Just additional guidance for lawyers and judges as to how these cases should work.

[Iowa_Flames_Fan]

Originally Posted by 19Yzerman19

It's always important when the SCC rules on an issue, even if they don't change anything. The General Anti Avoidance Rule in tax is the most obvious example I can think of - every time the SCC decides on it, they usually re-affirm their 2006 judgment, yet it's always regarded as a critically important decision. Same here. I'm not seeing anything in this judgment that is groundbreaking or really alters the landscape on title, but because it's the SCC saying it, it's inherently a big deal.

The point there is, this should not be a gateway to a sudden influx of new title claims that weren't available before, I don't think. Just additional guidance for lawyers and judges as to how these cases should work.

I'm frankly a bit confused by two assertions you've made in this thread: that the decision in Tsilhqot’in Nation "doesn't change anything," and that there is "plenty of jurisprudence" elucidating how aboriginal title works.

In fact, and I'm certain you'll correct me if I'm mistaken, there have been basically three instances since Delgamuukw where aboriginal title has been addressed by the Supreme Court (one of which is this case, and another of which is Haida Nation, which involved a to-this-day unproven claim for title), and until now aboriginal title to land has never been recognized.

I think this decision is in fact very important--and my guess is that it will lead to a good deal of litigation. I haven't formed an informed opinion about it yet, but I at least feel that it is important, and particularly given that (under Haida Nation) even a claim for aboriginal title gives rise to a duty to consult, at a minimum regulatory approval of resource projects like Northern Gateway now faces an additional administrative hurdle.

[ripTDR]

Does this mean full status working in Vancouver do not have to pay taxes.

[FlamesAddiction]

Originally Posted by Street Pharmacist

1) These lands under dispute were not conquered by any definition. Just the legalities were essentially ignored. If that is conquest, I'm gonna conquest your house and move in

2) Most of the country is not disputed native lands, so I'm not sure what you're getting at with the nomadic comment. Natives are not staking claim to the entire country, only to specific which they have a previously agreed upon treaty that has never been taken away. People simply ignored it

1) Legalities of the 1700s =/= legalities of today. If you are going to claim historical relativism, then where do you draw the line?
The only people with legitimate claims to any land that was "taken" have been dead for hundreds of years. I refuse to believe that someone's DNA, skin colour or ancestry (of which the records of are sketchy to say the least) give them title to land. It's a ridiculous concept that wouldn't apply to any other ethnic group on Earth.

2) Maybe not from your experience, but from mine, every native person I have discussed this with, makes a moral claim to all of Canada being Native land.

[Tinordi]

Originally Posted by FlamesAddiction

1) Legalities of the 1700s =/= legalities of today. If you are going to claim historical relativism, then where do you draw the line?
The only people with legitimate claims to any land that was "taken" have been dead for hundreds of years. I refuse to believe that someone's DNA, skin colour or ancestry (of which the records of are sketchy to say the least) give them title to land. It's a ridiculous concept that wouldn't apply to any other ethnic group on Earth.

2) Maybe not from your experience, but from mine, every native person I have discussed this with, makes a moral claim to all of Canada being Native land.

/laughably self serving argument

[Street Pharmacist]

Originally Posted by FlamesAddiction

1) Legalities of the 1700s =/= legalities of today. If you are going to claim historical relativism, then where do you draw the line?
The only people with legitimate claims to any land that was "taken" have been dead for hundreds of years. I refuse to believe that someone's DNA, skin colour or ancestry (of which the records of are sketchy to say the least) give them title to land. It's a ridiculous concept that wouldn't apply to any other ethnic group on Earth.

2) Maybe not from your experience, but from mine, every native person I have discussed this with, makes a moral claim to all of Canada being Native land.

1) International law and ours are disagreeing with you
2) Definitely not my experience but not relevant to what I was discussing

There's this weird pervasive idea in Canada that we conquered the lands and are now giving them back. The reality is most of these treaties are not that old and just got ignored when it became convenient


Edit: Ignored not ignited

[Iowa_Flames_Fan]

Originally Posted by FlamesAddiction

1) Legalities of the 1700s =/= legalities of today. If you are going to claim historical relativism, then where do you draw the line?

I have a feeling you'd be very surprised to learn what the "legalities" of conquest in the 1700s actually were.... In fact, aboriginal title has nothing to do with what you call "historical relativism" and everything to do with the legal consequences of annexation and conquest as they have been since well before the Royal Proclamation.

[19Yzerman19]

Originally Posted by Iowa_Flames_Fan

I'm frankly a bit confused by two assertions you've made in this thread: that the decision in Tsilhqot’in Nation "doesn't change anything," and that there is "plenty of jurisprudence" elucidating how aboriginal title works. In fact, and I'm certain you'll correct me if I'm mistaken, there have been basically three instances since Delgamuukw where aboriginal title has been addressed by the Supreme Court

There is a lot of jurisprudence out there overall (not just SCC) that has developed over decades, such that this decision could be characterized as "further clarifying" the law, rather than setting any bold new precedent. That's what I meant.

[Iowa_Flames_Fan]

Originally Posted by 19Yzerman19

There is a lot of jurisprudence out there overall (not just SCC) that has developed over decades, such that this decision could be characterized as "further clarifying" the law, rather than setting any bold new precedent. That's what I meant.

Hmm. Well, if that is what you're saying, I guess I disagree--in the sense that I think that Delgamuukw announced that a claim such as this was possible, but the post-Delgamuukw jurisprudence treated aboriginal title as almost like a unicorn--a fun idea, but so impractical and difficult to prove that it was almost a hypothetical right, and there was no need to decide, for instance, what aboriginal title actually meant. The BC Court of Appeal in the recent litigation was a perfect example: it was one more decision following the Delgamuukw tradition of saying "we don't know what aboriginal title is, but it isn't THIS."

In that sense we are absolutely on new ground here. Aboriginal title is available to bands that did not sign treaties, even if their occupancy on the subject lands is periodic rather than constant, and even if it's open to some doubt.

Also, the facts here are pretty important. Keep in mind that the 1,700 acres over which the declaration has been granted were occupied by only around 400 people. This was sufficient to meet the Delgamuukw standard of persistent use even though the actual use was periodic and the band travelled constantly throughout the area.

In effect, aboriginal title is now a much more real possibility for all non-treaty lands, and much easier to make out than it was previously.