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Supreme Court gets it wrong


Roger Obonsawin, Guest Columnist







Page 5

At first glance it looks as though the Supreme Court of Canada has discriminated against Native peoples. In its Nov. 9 decision on Musqueam v. Glass, the majority ruled that, for the purposes of determining lease prices, Musqueam land was worth only half the value of non-Native land.

Some 70 residents who held leases on Musqueam land in a tony area of downtown Vancouver had objected to the band adjusting its rents to reflect current land value?that is, the value of the land were it sold on the open real estate market. This is common practice in determining lease rates, and the 99-year leases stipulated that 1995 (or 30 years after the leases were signed) was the trigger year for recalculating the leases. The market value of downtown Vancouver land had risen considerably and the band, needful of the revenue but in accord with the agreements, sent around notices of rent hikes of more than $20,000 per property. The residents complained and took their case to Federal Court. They won and the band appealed to the Federal Court of Appeal. The band won there and the residents appealed to the Supreme Court.

In its ruling, the Supreme Court accepted valuation evidence from the original trial that said, in effect, that because the land is reserve land, it is subject to the politics of reserve life and the uncertainty of political unrest. Besides, pre-paid leasehold lots on another section of the Musqueam reserve had recently sold at roughly 50 per cent of comparable non-Native land.

The minority decision?it was a 5-4 split?was written by Chief Justice McLachlin. She said the lease agreements were clear in their intention to apply the free-hold value of the land (what it would be worth on the open market if it were sold) when it came time to re-evaluate the leases. The fact it was Native land should not enter the equation. She doesn?t quite say that to do otherwise would be to discriminate against the Musqueam, but she comes pretty close.

So, for the purpose of setting rents, at least, Musqueam land is worth only half of what equivalent non-Native land is worth, unless the Musqueam surrendered it for sale. Then they would get its full market value. That sounds remarkably like the old, colonial attitude to Native land: It?s worth less in Native hands than in settlers? hands.

There are certainly differences between Native land and non-Native land by virtue of who holds it. But is the marketplace the correct yardstick for measuring its value?

Take a look at a topographical map of southern Canada where most Canadians live; where the land has been cleared for exploitation and where its market value is high because it has been ?improved.? Do you see all those green areas? Some of them are parks. But some of them are Native reserves. In many areas of southern Ontario, where I am from, reserves are a particularly good place to hunt, because that?s where the animals are.

We value land that is ?unimproved,? that is, land that does not have a lot of buildings or services on it. The value we place on the land is intrinsic to the land. It is the land itself that has value, not the land as a potential mine, or park, or wet-land in which to hunt ducks, or place to build town-houses.

(see Supreme Court page 12.)