A lot of "we-don't-knows"

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An Ontario lawyer that specializes in land claims said the federal strategy of forcing First Nations to deal with claims on a case-by-case basis, has been contradicted by the Supreme Court of Canada's Musqueam decision.

"There's a double standard there that nobody picked up on," Paul Williams told Windspeaker on Jan. 19.

"What the majority of the court said is that it is reasonable that Indian reserve land should rent for less than non-Indian reserve land because of the apprehension of unrest and the uncertainty that comes with self government. Other cases have said that if Indians are claiming Aboriginal title, it has to be on a band-by-band, land-by-land basis. So just because you have proved something on Six Nations, doesn't mean you have proved it on Tyendinaga or Akwesasne or Rama or whatever. You've got to go case-by-case."

But the Musqueam decision contradicts this, he said.

"If you're trying to evaluate the value of Indian land for rental, then the fact that there may have been unrest at Gustafsen Lake or Oka means that it's reasonable to reduce the rent by 50 per cent because of an apprehension of unrest, even if there never has been any in Musqueam. There was no evidence there was any unrest at all in Musqueam. The idea is that it's fair to reduce rent on a global basis because of the apprehension of unrest and the uncertainty of self government, but when it's Indians trying to prove something about land, they've got to do it on a case-by-case basis."

Williams and other lawyers have noted the courts frequently struggle when forced to deal with decisions involving compensation for mistakes and illegal actions taken by government during the colonial era. Most lawyers will admit privately that political considerations often find their way into court decisions, although few will say so on the record.

Native leaders have long complained the Canadian justice system employs double standards. Leaders say Canadian law is designed to protect the colonial establishment. When First Nations seek to use Canadian law to back up their legal positions, their reasonable demands for compensation for errors or outright land theft are often seen by the courts as problems to be solved through complex legal maneuvering, rather than dealt with directly.

This complex and confusing world is not any easier to understand after the Ontario Court of Appeals decision regarding a claim by the Chippewas of Sarnia. Nor is it straight forward when a treaty is involved.

As law professor Bruce Wildsmith told Windspeaker in the days after his client, Donald Marshall, Jr., had his treaty right to fish upheld by Canada's highest court, treaty rights are different from legal rights because treaties are local issues. Williams said this further adds to the confusion because the law varies from band to band and case to case.

"The court of appeal says the Royal Proclamation was repealed by the Quebec Act, however, the Crown obligation to purchase land fairly in open council was part of the Treaty of Niagara obligations in 1764," Williams explained. "Now there were 24 nations at Niagara in 1764. They get the treaty right, which covers the same turf as the Royal Proclamation. Other people may not. That gets messy because there were really no surrender rules in place until the 1850s and 60s. If you surrendered land between 1774 and the 1850s and you don't have Niagara Treaty protection or the equivalent, then there may be no rules binding the Crown. The other thing is, if the Crown violates the treaty, we don't know at this point what violating the treaty means. Does it invalidate the transaction or merely give rise to more claims for damages? So there are a lot of 'we-don't-knows' here."