Courts flip-flop to serve third party interests

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While admitting that part of the city of Sarnia is on land improperly carved away from the Chippewas of Sarnia's reserve, the Ontario court of appeals still rejected the First Nation's claim that it still holds title to the land.

Legal observers say the final decision was not much in question in that case, even before the trial that produced the appeal. Everyone was certain the court would not tell the 10,000 non-Native people residing on the disputed land they didn't own it. The only question was how the court would justify reaching that decision.

"The main message of Sarnia is: Don't go after landowners. You're not going to succeed. Go after the Crown. And after 150 years, your chances of taking possession of the land are minimal," said Paul Williams, a well known lawyer in Eastern Canada with extensive knowledge of treaties and the history of land surrenders. He represents the traditional Iroquois Confederacy Council, as well as many First Nations with claims against the Crown.

The trial decision, he said, and the appeal court decision, have made a few strides forward in clarifying a very muddled area of law, but not without adding more uncertainty in other areas.

"What the trial court did is it said there is no surrender, therefore all the patents (land deeds) are invalid. However, these people are innocent purchasers for value. They've been on the land for 150 years. They got the land in good faith from a government they had no reason to think was unable to patent the land."

At the trial level, Judge Archie Campbell said he was going to invent something - after 60 years, people get an equitable possessory title to land that is good against the Aboriginal title holders. That was overturned at appeal.

"The appeal court said there is no surrender [of the land], but the Sarnia Chippewas knew about the transaction, behaved as if it was real, demanded the money, never attacked it and only 140 years later noticed that there was no valid surrender. So, therefore, [the appeal court judges] are going to say that [the Chippewas] intended to dispose of the land whether or not the formal requirements were complied with and therefore the patents are valid. That's quite different from saying the patents aren't valid, but after 60 years you get possessory title. The trial decision is about equitable possessory title and the court of appeal said that doesn't exist."

Equity law has never been applied to a land claim before. It is a part of the law that, in previous centuries, balanced the power of the Crown in disputes with commoners.

In the Sarnia case, Canada and Ontario asked the court to quickly dispose of the band's claim, arguing that all the facts were before the court and a trial was unnecessary. Judge Campbell granted the motion, reviewed the evidence and returned with a decision that was very critical of the Crown. Campbell went to great lengths and broke new legal ground to justify not issuing an order that would recognize the Chippewas held legal title to the disputed land. Yet parts of his ruling strengthened the Chippewas claim for compensation.

Williams intervened on behalf of three neighboring bands at the appeal. He noted that Judge Campbell's decision conflicted with a previous Ontario Court of Appeal ruling. Campbell ruled the Royal Proclamation of 1763, a key piece of law that serves as the basis for many Native land claims, is the law in Ontario. Judge Steel in the Temagami case ruled the Royal Proclamation had been replaced by the Quebec Act of 1774.

Campbell said the Royal Proclamation determines that Indian land can't be sold without a surrender. He also affirmed that technical defenses such as statutes of limitations are no good against Indian title claimants because they had limited civil and legal rights at the time many of the land surrenders occurred.

The court of appeal rejected Campbell's reasoning regarding the Royal Proclamation, saying it was rendered obsolete by he Quebecct. That is an issue that will be raised if the Supreme Court of Canada agrees to hear the Sarnia band's appeal, said band lawyer Earl Cherniak.

Other First Nations could see their claims effected by the Sarnia decision. One of Williams' clients is the Chippewas of the Thames First Nation. They claim their Bear Creek reserve was sold by mistake and there was no surrender.

The Chippewas of the Thames intervened in the Sarnia case because part of Campbell's decision, if left unchallenged, would have threatened all Native land claims.

"Right near the end of his judgment, [Campbell] said possessory title means Aboriginal title is extinguished and if you can't use the land then you don't have Aboriginal title because Aboriginal title means use of the land. If somebody else has use and occupation then goodbye Aboriginal title," he explained.

Williams argued that Aboriginal title should not be so easy to dispense with. He suggested to the court that, even if the court was unwilling to rule that non-Native land owners should not have their land taken away because an error by the Crown had not ensured that the original inhabitants had properly given up their ownership of the land, the Native title should still exist in some form.

"What we tried to say was that extinguishment is something you should do very reluctantly and in this situation it's