© 1997 Karen Selick
One Little, Two Little, Three Little Land Claims
An edited version of this article first appeared in the June, 1997 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 One Little, Two Little, Three Little Land Claims

Read any good horror stories lately?  I just finished a real hair-raiser: "Our Home Or Native Land?" by lawyer Melvin H. Smith.  What makes it particularly scary is that it’s a true story, and it’s not over yet.

Once upon a time, says Smith, the Canadian government offered to repeal the Indian Act and implement full equality for the 3 percent of the population known as aboriginals. However, it turned out the aboriginals didn’t want equal treatment after all.  They wanted special treatment.

What would satisfy them?  Nothing less than complete control over a huge chunk of the Northwest Territories (about one-fifth of Canada’s total land mass) , fee simple ownership of 111 percent of the land in British Columbia  , further land in the Yukon and most of the other provinces, billions of dollars in cash, and the right to make different laws for a portion of the population selected by race.  They claim the country owes them this because the Creator granted them the land in the first place  and other Canadians stole it from them.  

Now here’s the scary part:  while the media and the other 97 percent of the population sleep, the government starts giving the aboriginals what they’ve asked for—even though the courts have said repeatedly there’s no merit to most of their demands.  By the time anybody wakes up and notices, the quasi-province of Nunavut has been created and several chunks of the Yukon have been conveyed away in fee simple.  Self-government has been granted to several "nations", including one as small as 398 people, each distinguishable from the rest of the population solely on the basis of race.   The hefty tab for all the new government buildings and bureaucrats’ salaries will be picked up by—guess who?--non-aboriginal taxpayers in the rest of Canada .

All these privileges come  without giving up any of the benefits that other Canadians enjoy—medicare, pensions, and so on—or participation in the annual $6 billion worth of funding  earmarked specially for aboriginal programs.  The bands who’ve settled their land claims haven’t even been required to give a complete release respecting new types of claims someone else might dream up in the future.   And thanks to Section 35 of the Constitution Act, these privileges have become constitutionally entrenched  .

Maybe you’re surprised by all this, but don’t berate yourself for having fallen asleep during the evening news.  Some of it was accomplished with virtually no parliamentary debate.  The national media have been conspicuously silent about these events.   According to Smith and another B.C. lawyer with extensive experience in native issues, merely questioning the wisdom of these land settlements is enough to get you branded a racist.        

So let me try to ward off this fate for myself by saying that I’m not opposed, in theory, to giving Crown land away to aboriginal Canadians.  I think it’s better for resources to be held in private hands than by the state.  (Unfortunately, it appears the aboriginals may intend to hold the land communally rather than individually, thereby perpetuating all the inefficiencies and misallocations of state ownership.)

But why confine the give-away to aboriginals?  Doing so lends credibility to their claim that merely traveling over land, hunting, trapping, and gathering on it, is sufficient to establish a modern-day, fee simple title, characterized by the right to exclude others.  It isn’t.  Canadian courts have said so, and they’re right. The two notions are worlds apart.  

Aboriginal culture treated the land as a commons, in which all were free to take what they could from it.  In that philosophy, there are no grounds (apart from sheer racism) for preventing white newcomers from doing the same.  English culture, following philosopher John Locke, says anyone, white or aboriginal, can obtain title to property—the right to take it out of the commons and exclude others from it—by mixing his labour with the land: by changing, improving or building on it. 

If we bow to the aboriginals’ attempts to parlay their traditional hunting and trapping rights into the vastly greater fee simple ownership rights when we’re talking about Crown land, there is then no principled reason for denying similar claims when the discussion turns to the city of Vancouver.

On the other hand, if we simply decide to give away Crown land because it’s better off in private hands, why can’t non-aboriginal Canadians get similar grants?

Likewise, I have no objection, in theory, to self-government for small groups of people.  However, I do object to awarding this right strictly on the basis of race.  There are many aspects of Canadian government I’d love to opt out of, and I know a few hundred people who’d be happy to join me.  

I also object to paying for benefits earmarked for aboriginals.  The land I live on, according to local history books, was never occupied by aboriginals.  My ancestors came to Canada early in this century with little more than the clothes on their backs.  They survived by hard work. They never stole anything from anyone.  There must be millions of other Canadians with similar backgrounds.  Taxing us to compensate the aboriginals for past wrongs, suspected or proven, is not correcting an injustice—it’s inflicting a new one.

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June 18, 2000