New take on law could undermine land claims

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An Ontario Court of Appeals decision, with potentially far-reaching implications for land claim lawsuits in all parts of the country, will be appealed to the Supreme Court of Canada.

The five-member Ontario appeals court ruled the Chippewas of Sarnia are not the legal owners of land that is now part of the city of Sarnia, despite the fact the Chippewas never surrendered the land.

Many lawyers who represent First Nations believe no Canadian court will ever displace third parties that hold title to disputed land, but the Chippewas of Sarnia and their lawyer, Earl Cherniak of Toronto, still believe they can persuade a court their title to the city land is valid.

"We haven't so far, but we expect to be able to. We're certainly going to try to be able to in the Supreme Court of Canada," Cherniak told Windspeaker.

The Ontario court broke new legal ground in its decision by applying the law of equity to a Native land claim. The law of equity originally evolved to balance the power of common citizens when they were involved in a dispute with the much more powerful Crown. The Court of Equity, in past centuries, was called the "king's conscience." If, for example, the law called for a thief to have his hands cut off in punishment for the crime, a man convicted of stealing one loaf of bread to feed his starving family could ask the Court of Equity to rule the Crown should not impose such a harsh penalty. Equity, in the modern setting, refers to the court's discretion in deviating from the strict letter of the law if there are unusual circumstances.

The Ontario appeals court ruled that the 10,000 non-Native people who live on the disputed Sarnia lands should not be forced to move off of the land because an error was made by Indian Affairs in 1861. The land in question was believed to have been properly surrendered at that time, but it was later discovered that no surrender was ever formalized. The Chippewas argue that, since no transfer of title was ever made, they still own the land.

Cherniak noted that both the trial judge and the appeals court examined the Sarnia band's research and concluded there had been no legal surrender. Trial Judge Archie Campbell made new law when he reasoned the laws of equity suggest that a 60-year limitation period should apply to the sale of the land. Since the Chippewas had not launched a legal action by Aug. 21, 1921 (60 years after the letters patents - or land deeds - were granted to the non-Native land owners), Campbell ruled the Chippewas had no case against the present title holders. Both Campbell and the appeal court ruled the Chippewas still have a valid claim for monetary compensation from the Crown for its error in not securing a proper surrender.

"The trial judge gave us a declaration that there was never any surrender and that the letters patent were invalid. He came up with what he called an equitable limitations period. He created that," Cherniak said. "The court of appeal disagreed with him. We actually won on that point. We didn't agree with that limitation period. Then the court of appeal agreed there was no surrender, the court of appeal agreed that we were dealing with unsurrendered Aboriginal title, but then they said that equitable reasons denied us the right to a declaration - and the lands. We say the court of appeal's wrong."

Laws of equity also included statutes of limitations but those laws have not been applied when Native people are involved in litigation because Native people had few civil or legal rights under Canadian law until well into the 20th century. Cherniak also argued that Canadian law is very specific about how Native land surrenders must be handled.

"The court of appeal, in effect, applied equitable considerations when the courts have said that unsurrendered land can only be extinguished by the specific intent of the legislature," he said. "This whole idea that Aboriginal title, unsurrendered Aboriginal land, especially unsurendered Ariginal land subject to a treaty, can be extinguished by the operation of equitable principles when the legislature itself - Parliament itself - couldn't extinguish it before 1982 unless it specifically pointed to that land . . . well, that's new.

Another issue of great interest to many First Nation people was raised during the hearings. The appeal court held that the Royal Proclamation of 1763, a central piece of colonial law that provides important legal protection to Indigenous rights in Canada, was no longer the law of the land because it had been replaced by the Quebec Act of 1774. Cherniak said fighting to preserve the legal force of the proclamation, while it's not crucial to winning the case at hand, is an important aspect of the case.

"The Royal Proclamation isn't important on the surrender issue. It's important on issues as to whether the land is still constitutionally protected because of the Constitution Act in 1982 which said that the Royal Proclamation is part of the Constitution of Canada," he said.

The leave application asking the Supreme Court of Canada to hear the case will be ready sometime in March. The Supreme Court justices have unlimited discretion about which cases they will hear and they do not have to explain their decisions.