00:00:00.140In communities across Canada, hourly Amazon employees can grow their skills and their paycheck by enrolling in free skills training programs for in-demand fields.
00:05:11.000That's pretty wide open, but there is a definition section within the agreement,
00:05:32.060which says rights and title means the existing Aboriginal and treaty rights recognized and affirmed by Section 35 of the Constitution Act 1982
00:05:40.620and for greater certainty includes Aboriginal title and self-government rights.
00:05:47.300Despite the minister going, Minister Rebecca Alty, Minister of Crown Indigenous Relations,
00:05:53.880going on X and saying this does not impact private property rights in any way,
00:05:58.760I would look at this and say a decent lawyer taking this to court could end up opening this up to all kinds of interpretations.
00:06:07.420There could indeed be all kinds of interpretations.
00:06:10.320I guess part of what remains to be seen is what the case law is going to say about Section 35 Aboriginal title and private property,
00:06:22.160and that's being litigated in Cowichan.
00:06:24.500It's being litigated out in New Brunswick in the Willastiquay case.
00:06:28.360This agreement in its terms in some ways is bounded by what that Section 35 case law ends up saying.
00:06:37.780On the other hand, some of what it says there already goes further than existing case law.
00:06:44.160The reference to self-government actually hasn't been upheld by the courts as a Section 35 right at this stage.
00:06:53.480And Jeff, the federal government signed an agreement, and I know this is not a treaty or a land claims agreement,
00:06:59.220but the federal government has just signed an agreement recognizing something that has been litigated before the courts in the past.
00:07:05.260Yeah. I mean, they're giving a particular interpretation of the case law that I think goes beyond what the case law says in that definitional clause.
00:07:16.280Now, they can negotiate things that go beyond the case law.
00:07:19.180I'm just surprised that when they're defining rights and title in accordance with what the courts have said on Section 35 rights,
00:07:28.660that then they say including some things, and then they include some things that go beyond what the courts have actually said.
00:07:35.560So it might be a forecast of where the courts will go, but that's not usually the way that one would end up defining it.
00:07:44.240So there's a lot of uncertainties and complexities here.
00:07:47.960There are other clauses in the agreement that try to say that it's not for the purposes of affecting litigation if things ended up breaking down in the negotiations.
00:08:00.620But what the federal government has agreed to in this could probably be invoked against the federal government if there were a court case where it were pertinent.
00:08:10.380This is what happened in Cowichan to the BC government, which got told it couldn't make certain arguments in the Cowichan case,
00:08:19.600a different case because of things it had said in the Haida agreement about the interaction of Aboriginal title and private property.
00:08:27.900So there could be unexpected effects from this agreement, not just in this area, maybe in other areas as well.
00:08:35.280There is a part of the agreement that leaves me puzzled, and I'd like to get your view on this because while I have spent a long part of my career watching the courts and my detractors on X like to remind me that I'm not a lawyer,
00:08:51.640that I'm not a constitutional law professor as you are, and I'm just some schmo that went to broadcast journalism at Mohawk College.
00:09:00.100I've spent a lot of time in courts covering the Supreme Court, and you get to understand the patterns, and you get to, you know, whether it's patterns, precedent,
00:09:09.560you understand directions that courts could take where things might go.
00:09:14.320But there's part of this agreement that leaves me saying, what on earth could this lead to?
00:09:21.760And it is where it says that the agreement will honour Musqueam legal tradition, the United Nations Declaration of Rights of Indigenous People,
00:09:31.100which is international law, and Canadian common law.
00:09:34.420So these are sometimes going to have competing views.
00:09:45.800Could it be up to, well, whichever way the judge or the litigants decide they want to go, their particular point of view?
00:09:54.860Yeah, I mean, I think it could end up being up to a judge.
00:09:58.120The main purpose of the agreement is to structure negotiations.
00:10:02.760So in the first instance, it's up to the Musqueam and the federal government coming together in those negotiations.
00:10:08.660My guess is where those sources say different things, there will be arguments by the Musqueam to take the largest and most far-reaching of those.
00:10:22.120And that might well be what ends up prevailing in negotiations.
00:10:26.460Or if it didn't, it might be what a judge would be persuaded to do.
00:10:30.460So when Minister Alty goes on social media and says,
00:10:34.580these agreements do not impact private property,
00:10:36.760this is preferred to the more uncertain alternative of determining Musqueam's aboriginal title through the courts.
00:10:43.660By negotiating, we're able to uphold existing property rights and advance reconciliation.
00:11:56.960And I know that's not a very comforting way to describe it.
00:12:01.240But that's sort of where we're at right now, that there's an agreement to pursue negotiations
00:12:07.320on the basis of the federal government recognizing aboriginal title in this area.
00:12:14.140That comes with complications, because there's also overlapping claims by other First Nations.
00:12:20.680So there's a bit of a mess to sort out there.
00:12:23.700But there will be negotiations within what the federal government can do, based on the federal government's recognition of aboriginal title.
00:12:34.420And I emphasize that bit about what the federal government can do, because largely the federal government actually can't change title to land within the province.
00:12:44.500That's a matter within provincial jurisdiction.
00:12:47.120And the current provincial government in British Columbia is run by the New Democrats, who are very much on board with implementing the Universal Declaration of Rights of Indigenous Peoples in a way that is much more liberal, progressive than the previous B.C. liberal government did.
00:13:11.540So just back to the point that the Musqueam say that they're not coming for anyone's land.
00:13:17.920I do want to read a quote that was put out by Chief Wayne Sparrow, where he said,
00:13:23.720Musqueam is not coming for anyone's private property.
00:13:26.180Our approach to traditional unceded territory is one of partnership and relationship with our neighbors, not trying to take away our neighbors' private property.
00:13:33.980And I have no reason to doubt Chief Sparrow, but he is just like the current NDP government is the current NDP government.
00:13:57.700So, yeah, I raised two points on his comments.
00:14:01.180So, first, you're right, the chief could change at some point.
00:14:05.760The policy of the Musqueam could change at some point.
00:14:09.800Again, whether that matters, Taiwan's home, in the context of this agreement, is still subject to the jurisdiction of the federal government.
00:14:20.980People should be watching what does the provincial government agree with them, because that's where things could really hit the road.
00:14:27.440However, the other piece that I would say here is that even though they're not going after anyone's home, you could say, well, well, then why didn't they put that in the agreement?
00:14:38.000They are actually making use of the threat to individual private property in order to try to negotiate something from Ottawa, in a sense.
00:14:48.920And so, it operates as part of the background of all of this, that there be some uncertainty over what happens with Aboriginal title claims to private property, because they're going to use that as part of the negotiation with the federal government.
00:15:05.560And maybe down the road, there could be a clause that does protect private property.
00:15:10.600In the meantime, yeah, it's an uncomfortable position.
00:15:13.880There's going to be some uncertainty waved around about private property a little bit, even while they say they're not going after it.
00:15:20.440Because their main objective, I think, sincerely, is to try to negotiate accommodations from the federal government in light of this agreement.
00:15:29.140So, before I switch to Tukawachin, where the provincial government has had to extend mortgage and loan guarantees to homeowners after that decision, do you know how this Musqueam Agreement came about?
00:15:46.920You know, I understand it was a long time in coming.
00:15:49.380Is this part of an ongoing land claims process?
00:15:53.500You know, for most of us, it seemed to come out of nowhere, but my understanding, it's been in the works for some time.
00:16:01.960Yeah, it would have been in the works for some time.
00:16:05.040I don't know the exact history on it, but there are First Nations claims all across British Columbia, hundreds of such claims, although the provincial government won't release an exact list.
00:16:17.380But there are hundreds of such claims, and some of them are in negotiations, and we largely don't know the exact state of those negotiations.
00:16:27.180The federal and provincial governments, a few years ago, agreed on the idea of pursuing sort of more interim agreements.
00:16:34.960This sort of agreement, like a rights recognition agreement, fits into this model, so it hasn't resolved everything finally.
00:16:43.800It's sort of agreed on some things, set up a process, set up a dispute resolution process, and tried to set the stage for some interim accommodations, but it's not a final agreement.
00:16:55.540So there are such negotiations underway, probably in lots of contexts in British Columbia, and we just don't know about those, and it's not a very transparent way of governments going about this.
00:17:10.160I don't know that this lack of transparency is actually sustainable, given the heightened concern about these issues at the present time in British Columbia, or in Canada generally, but especially in British Columbia.
00:17:22.320I think that the lack of transparency is at the heart of all of this and causing so much of the consternation.
00:17:28.000Let's talk about land claims in British Columbia.
00:17:31.540I've heard, you know, people have said 120% of British Columbia is claimed by various First Nations groups.
00:17:40.220Why is the treaty system so different in British Columbia that, you know, most of the country where you reside in Saskatchewan, you've got treaties in Alberta.
00:17:50.240There's treaties in Manitoba, Ontario, Quebec.
00:17:56.240I know there's, I believe there's a couple, but what's the difference between British Columbia and the rest of the country?
00:18:02.360Yeah, there was a certain stage, a decision not to negotiate treaties in British Columbia.
00:18:08.460And it's a bit of a historical mystery on just why this happened in British Columbia and not elsewhere, but it was a decision by the government officials there.
00:18:19.560There's some mixed evidence on why they made that decision in terms of either they just didn't want to negotiate treaties, but there's also some evidence.
00:18:31.040And they may have been mistaken in this, they may not have been, but the governor at one point apparently thought that it was better for First Nations not to be in treaties.
00:18:41.440Those that didn't enter treaties may actually get a lot of benefits from that today.
00:18:47.300They may get much better arrangements, although they've had a long period, obviously, without having treaties and face some consequences as a result.
00:18:57.180In different parts of the British Empire, there's some places with treaties, some without.
00:19:03.940And different writers have tried to figure out why this is, but it's just a reality that, for our purposes, that British Columbia have almost no treaties.
00:19:15.620A bit of the northeastern corner of British Columbia is in one of the numbered treaties.
00:19:19.700And there are a handful of treaties over very small areas on Vancouver Island as historic treaties.
00:19:28.220There have started to be some modern treaties, but there were other parts of Canada that faced that as well.
00:19:33.720Across the north, there were no treaties.
00:19:36.640There have now been modern treaties reached across the north.
00:19:45.540There's some disputes in the Maritimes, and this is why we have the Wollosquake case over whether the treaties there actually surrendered land or not.
00:19:59.120Well, I'm sitting right now on the land that would be called the Toronto Purchase, where the Crown purchased 250,000 acres from the Mississaugas of the New Credit.
00:20:08.260And that's been opened up multiple times.
00:20:09.920I believe the last time, unless it's been opened up again, the Harper government made a multi-million dollar payment on top of the payments that have been made in the 1780s, the 1800s, the early 1900s.
00:20:21.340Could cases like the Cowichan, which we'll get to in a moment, or this Musqueam Agreement have an impact on treaties and how land and title is viewed, right and title is viewed in other parts of the country, such as in the Maritimes or the Prairies or Ontario?
00:20:38.440Yeah, in principle, I would say there should be no legal effect on treaties.
00:20:45.060At a practical level, I guess those in treaties see what those not in treaties are getting, and it may encourage them in trying to put some arguments.
00:20:57.400The treaties across Ontario are a little bit different, or across part of Ontario, southern Ontario, tended to be smaller land purchase agreements.
00:21:08.780And then once you got to northwestern Ontario, you got more of the model that ended up becoming that of the numbered treaties.
00:21:16.280The Robinson-Huron-Robin-Superior treaties start to take some of that form, and then you get the numbered treaties across the prairies.
00:21:25.600One of the things that arose, though, is that First Nations were able to show that certain treaty terms had not been honoured,
00:21:36.400and what the Harper government tried to do was set in place a process such that if they could prove that,
00:21:43.460then there could end up being compensation called a specific claim for a treaty term not being honoured.
00:21:50.580And there's an ongoing process then of trying to resolve those disputes, and it is a costly process in some of these instances.
00:21:58.460Some of the agricultural clauses in the prairies are leading to payments to First Nations of hundreds of millions of dollars.
00:22:07.180And, of course, the big one in Ontario, the Restool case, actually led to, because of an issue where there was a determination the treaty should have had an escalating payment over time,
00:22:21.440has now led to a back payment in the range of $10 billion, with a B.
00:22:27.020And so there's some pretty dramatic consequences from some of those, partly because of the compounding effects of interest over time.
00:22:36.480And we're talking about things that reach way back in time, and the dispute over what rate to apply makes a huge, huge difference as well.
00:22:45.340So, yeah, there are some lingering issues there, but the issue over the ownership of the land is not there in the prairies or in significant parts of Ontario in the way it is in British Columbia.
00:23:01.740When we come back, we will talk about the Cowichan decision and see how it's different from Musqueam, how it applies, what people should know about it, and be concerned about.
00:23:10.240Speaking with Professor Dwight Newman from the University of Saskatchewan, more in moments.
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00:24:42.940Families who were split by referendum and brothers and sisters who never talked to each other for years after the referendum because they were so angry at each other because of the emotions on both sides.
00:24:55.780The reason he was assassinated was not because he was trying to put a satellite into space, but because the gun that he was creating had other applications that made him and the gun very dangerous.
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00:29:38.980The court decision, let's be clear, it's under appeal.
00:29:41.980There's also an attempt to reopen it, but just taking it for what it is at the moment.
00:29:46.120The court decision back in August involved the judge making a declaration of Aboriginal title over an area
00:29:54.800and ordering the city of Richmond and the federal government to start a process on transferring the lands that they owned within that area to the Cowichan.
00:30:05.740And they gave them 18 months to negotiate about how to do that.
00:30:10.780So just the government-owned land though?
00:30:13.600So just the government-owned land is ordered to be transferred.
00:30:17.280And that's all that the Cowichans sought.
00:30:19.600But they did seek a declaration of Aboriginal title over an area that did include privately owned land.
00:30:26.600And privately owned land in technical legal terms, and I don't want to go back to the feudal origins of this,
00:35:44.860I mean, this case could open up many, many cans of worms.
00:35:50.300Well, it certainly opens up some big issues.
00:35:53.540And it's the first case that's really squarely confronted this.
00:35:58.360There have been a couple of others in the past that touched on it.
00:36:02.300So we knew this issue is coming, but a lot of First Nations have strategically decided
00:36:07.880not to claim against private property.
00:36:10.320And so the big 2014 Supreme Court of Canada decision in Silcoteen or Chilcotin saw the Silcoteen nation
00:36:20.220or the Chilcotin nation exclude from their claim area even the areas of private property
00:36:26.860that are located within the area that they traditionally occupied.
00:36:32.240And so there was just no dispute there.
00:36:34.440They avoided any extra complication from that.
00:36:38.840But we've now seen the next phase of First Nations starting to claim against private property.
00:36:45.840And so the Cowichan didn't ask for the transfer of the private property,
00:36:50.200but they did seek a declaration of Aboriginal title.
00:36:53.700They included areas of private property.
00:36:56.240And what we've got in New Brunswick is even more dramatic.
00:36:59.020The Wollostikwe case, it's an Aboriginal title claim to half the province,
00:37:05.080and there's another one to the other half of the province.
00:37:07.900One of the challenges there is that there's actually not much crown land in New Brunswick.
00:37:13.900And then there's this claim that the mid-1700s treaties didn't contain an explicit land surrender clause.
00:37:21.840And so there's an attempt to put these Aboriginal title claims that inevitably impact on private property.
00:37:27.780And so what the Wollostikwe did is they said they're not going to claim against individual homeowners.
00:37:33.840They made up this category they called the industrial defendants.
00:37:38.180But in essence, it's large landowners that have their land to make profits from the land.
00:37:45.140And they said they are claiming that land.
00:37:47.780Well, the New Brunswick Court of Appeal has shut that down subsequently to Cowichan and said,
00:37:53.540no, you can't claim Aboriginal title from private property owners.
00:37:58.360However, there might be compensation that owes from the Crown for that.
00:38:03.560And that's a separate issue that will be examined further.
00:38:07.420Now, the Wollostikwe are seeking leave to appeal this to the Supreme Court of Canada.
00:38:12.120They would like the Supreme Court of Canada to say, actually, there can be Aboriginal title claims to private property.
00:38:18.160So we might see the Supreme Court of Canada engage with this question sooner than later if they decide to hear an appeal from this interim decision in New Brunswick.
00:38:28.840And I know there's so many complications to all of this.
00:40:22.140This is largely symbolic, which seems quaint now,
00:40:27.000because UNDRIP has been integrated into federal law, in British Columbia especially.
00:40:32.700It has been integrated into provincial law.
00:40:35.540And it's showing up in court decisions and agreements.
00:40:38.760Is the United Nations Declaration on the Rights of Indigenous Peoples moving Canadian law further away from where it would have been
00:40:47.620if this had not been otherwise adopted?
00:40:50.760It's actually tough to say that it's had a major impact on these cases.
00:40:57.000These cases follow on a line of case law about Aboriginal title developed under Section 35 of Canada's Constitution Act 1982.
00:41:06.640Now, there's a little bit of reference to UNDRIP in the cases.
00:41:10.660In the Cowichan case, there's a bigger reference to the Interpretation Act Amendment, which was done there.
00:41:17.980And so, what British Columbia did is they said that they're passing legislation to implement UNDRIP.
00:41:27.600And they said they're going to amend, they said a couple of years later,
00:41:31.340they'll amend British Columbia's Interpretation Act to say that every judge reading a statute needs to read that consistently with UNDRIP where possible.
00:41:40.320And then, actually, it's not even as much in Cowichan, but in the subsequent decision, Kikala, which is about the mining system in British Columbia,
00:41:51.100the court ended up saying, well, they can now actually reread every British Columbia statute in light of UNDRIP,
00:41:58.520and they can make declarations that statutes are not consistent with UNDRIP.
00:42:02.760And part of that, the BC government invited with amending the Interpretation Act,
00:42:09.460they shouldn't be surprised when courts then follow that provision.
00:42:13.400The decision that courts would start striking down statutes for inconsistency with UNDRIP is, to be fair, I think, a surprise.
00:42:21.900I think that's beyond what the statute was ever meant to do, the Declaration on the Rights of Indigenous Peoples Act.
00:42:27.700But, both British Columbia and the federal government have these statutes,
00:42:33.780and it's because of those statutes, to a significant degree,
00:42:38.740that you've had some courts making some statements about UNDRIP being part of Canadian law,