Despite what you may have read over the last several weeks, Indigenous people – with the help of the courts – are not coming to seize your privately owned land.
Since the landmark B.C. Court decision which declared that the Cowichan Tribes had never given up (what the law calls “surrendered”) a part of their territory and so continue to have legal ownership (“the courts call it “Aboriginal title”) to that part of the territory, commentators have come out of the woodwork to warn us of the impending doom that will surely result from restoring to the Cowichan land that was stolen from them by Crown governments.
Politicians, lawyers and pundits have been stoking fears among property owners both within the Cowichan title area in B.C. and well outside of it, with warnings from as far away as Winnipeg and Toronto, that Indigenous people are coming to take your land.
Shocking, I know. But that seems to be the point.
Getting Canadians upset, scared and angry is exactly what they want.
Let’s be clear. The critics are inflaming anti-Indigenous sentiment. They are engaging in a campaign of fearmongering in order to set back the progress of reconciliation and build public anger.
They are taking a carefully reasoned, thoughtfully decided — and long overdue decision — to recognize a historical injustice against Cowichan Tribes, and are mischaracterizing it in a manner that that can only have been intended to divide Canadians.
Why would they do this?
Coming after several years of significant advances in the recognition and restoration of Indigenous rights and self-determination, one might wonder whether this response is intended to retrench how things used to be.
Through the courts and more enlightened government policy, historical wrongs have been righted and First Nations in many parts of Canada are now rightly sharing in the prosperity that their territories have reaped for Canada. There is still much work to be done, and the progress made in recent years is still relatively fragile.
Before Canadians allow the fearmongers to get to them, they should first consider that the chips are stacked in their favour. The legal test for proving Aboriginal title is extremely difficult for most First Nations to meet, carrying extraordinary financial obligations over sometimes decades.
The Cowichan decision is only the third time, ever, that a Canadian court has agreed with a First Nation’s claim of Aboriginal title, and it came after a relatively speedy 10 years of litigation.
Despite the Court’s finding that the Government of British Columbia did not have authority to issue the fee simple titles (private property ownership) within Cowichan’s Title area, the Cowichan Tribes have been unmistakably clear about their intentions: Cowichan “has not and does not challenge the effectiveness or validity of any title held by individual private landowners. The ruling does not erase private property.”
The only land that Cowichan actually asked to have back, and which the court ordered returned, was land owned by Canada and the City of Richmond – not land owned by individuals.
When it came to the private landowners, the remedy sought by Cowichan, and granted by the court, is a duty for the Crown “to negotiate in good faith reconciliation of [the] fee simple interests” held by these individual private landowners in the area to which Cowichan has Aboriginal title. In other words, having found that the government’s grants of fee simple title (private ownership) are unjustified infringements of Cowichan’s Aboriginal title, the government is now required to negotiate honourably with Cowichan to reconcile that infringement with their right.
Rather than imposing a particular outcome, the judge emphasized the importance of restoring the relationship between Cowichan and the government. In contrast to the hollow words too often deployed by some politicians, the court is requiring real, tangible reconciliation. We can only hope that the government will behave more honourably at the negotiating table than it has in recent public statements.
The next time a mayor, a pundit or a lawyer on the news tells you that Canada’s entire system of property ownership is suddenly at risk of collapse, remember that “stolen land” isn’t a slogan or a political position. Most of Canada, the land our houses, schools and offices are built on, was taken from Indigenous peoples under false pretenses and without fair compensation.
This is a historical fact that our governments have known about and have chosen not to do much about for generations. Despite that fact, Cowichan did not demand its land back from private landowners – it demanded exactly what we’re told the governments want – reconciliation.
So why all the hand-wringing?
Rather than spreading misinformation and inciting anger at the Indigenous Nations who are righting historical wrongs, we should demand that our governments stop using reconciliation as a buzzword, and celebrate that at least one historical wrong has been put right.
Corey Shefman is a lawyer for Indigenous peoples, persons and organizations at Olthuis Kleer Townshend LLP. The views expressed are his own.
