When the details of Canada’s agreement with the Musqueam First Nation trickled out, British Columbia’s opposition Conservatives had a field day. “The feds just recognized Aboriginal title over much of the Lower Mainland,” they warned in a video shared over social media, which depicted black ooze spreading over the map accompanied by a menacing soundtrack. “Your private property may be at risk.”
Ottawa and the Musqueam responded that they had done no such thing: The Recognition Agreement does not impact private property, they said.
The federal government did little to prepare its partners such as the province, Lower Mainland mayors and neighbouring First Nations for the Feb. 20 deal, and as a result, there were few allies willing to echo those assurances.
The bigger problem with the agreement is that it doesn’t explicitly take private property off the table.
Until recently, Canadians have long taken for granted that Aboriginal title doesn’t supplant private ownership of land.
Ottawa says Musqueam deal unrelated to private property rights
But the courts have eroded that comfortable assumption in the past year. Indigenous land claim settlements and court actions mostly steered clear of privately owned property, until B.C. Supreme Court Justice Barbara Young declared last August in the Cowichan decision that Aboriginal title is a “prior and senior right” to land, over and above the “fee simple” title that private landholders have.
The Cowichan decision will be appealed, but for now the courts have created uncertainty about the strength of private land ownership. Ottawa needs to acknowledge that, not in a reactionary way, but transparently.
The agreement with Ottawa promises to recognize Musqueam’s rights and title within the nation’s traditional territories, an area that spans about 533,000 hectares in one of Canada’s most densely-populated regions, including much of modern-day Vancouver, Burnaby, Richmond and Delta.
In Delgamuukw, the Supreme Court of Canada established that Aboriginal title “encompasses the right to exclusive use and occupation of the land.” So stating that title exists without saying where can create concern quite apart from the opposition’s speaking notes.
And, the agreement notes, Aboriginal title “includes a jurisdictional and inescapable economic component and the right to participate in decisions about the use and development of territory.”
The Musqueam, in the agreement’s preamble, say their objective is to “protect our territory and preserve our land-based culture, through the exercise of our laws to steward, control and limit the use of our lands, seas, waters and resources in our territory.”
Ottawa argues that its reach is limited and so is the agreement. It attempts to clarify this in one passage of the agreement, stating that the pact “does not constitute a treaty or lands claims agreements” that would be protected under the Constitution.
That might satisfy a judge, but more clarity would help the rest of us understand the implications.
Musqueam deal will challenge overlapping Indigenous claims across Canada
Canadian Identity and Culture Minister Marc Miller, the former minister of Crown-Indigenous Relations, spoke to reporters this week about the Musqueam deal. Rather than explain the federal government’s actions, he instead focused on critics he described as “a bunch of ignorant people that are trying to weaponize that for their own political purposes.”
There is no doubt that some politicians are shamefully using these agreements and court decisions to stir up anti-Indigenous sentiments. So, best not to provide easy targets through secrecy, or dismissing all criticism as bigoted.
Mr. Miller and his cabinet colleagues would do well to observe that it is not just opposition politicians who have raised concerns. B.C. Premier David Eby said he was kept in the dark about the details. (He did attend the signing ceremony, so perhaps he should have asked. But nonetheless he did not come to the defence of the agreement.) The mayor of Richmond was disappointed to be blindsided and, as a former lawyer, worries that the agreement is vague and open to wide interpretation. And there are the Musqueam’s First Nations neighbours, worried about overlapping claims.
The Musqueam’s deal is only a framework for what Aboriginal title will look like. But Ottawa must do better to be clear with the public, and its partners, about what that framework means.