Supreme court slashes rent on Musqueam land

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A Supreme Court of Canada decision handed down Nov. 9 in favor of non-Natives holding 99-year leases on 40 prime acres belonging to the Musqueam band will stall British Columbia treaty land negotiations and set back relations between Natives and non-Natives for years.

So says Chief Stewart Phillip, president of the Union of BC Indian Chiefs, who complains the court is valuing Indian land at half the value of the land adjoining their reserve.

"Systemic racism runs deep and is firmly entrenched in the parliamentary and judicial system of Canada," he said.

Musqueam Chief Ernie Campbell had earlier been quoted as saying they would abide by the Supreme Court decision, but when it came down he said, "It's a sad day for this country."

The Musqueam band was looking for annual rent of $36,000 for the lots, or six per cent of fair market value as established in its leases with the 73 tenants. The best offer by the tenants prior to the court proceedings was $6,000 per year, according to Musqueam lawyer Lewis Harvey last July. The dispute went to the Federal Court of Canada in accordance with the terms of the lease for resolving rent review problems.

The Supreme Court of Canada case turned on the meaning of "current land value." In a 5-4 decision, the court set aside the Federal Court of Appeal decision that set annual lease payments at an average $22,800. It put them back to $10,000 a lot, the same as the trial division set in 1997.

The lower court had ruled that the market value of land under long-term leases on an Indian reserve is lower than fee-simple land off-reserve. Lots off-reserve were valued in the $600,000 range, but the court made a deduction of 50 per cent for the land in Musqueam Park.

The band was joined by DIAND in appealing that decision to the Federal Court of Appeal because the department's process of setting rents was challenged and this could affect other leases it holds.

The appeal court overturned the lower court and appraised the land as if it were fee simple land with an appraised value of $600,000 per lot. It did not discount the land value because of any Indian reserve features, but it did deduct servicing costs of about $120,000 a lot. It set rents on the lots at $18,400 to $26,400 per year.

Musqueam Park tenants appealed to the high court on the basis of the value of leasehold lands, while the band cross-appealed the deduction of servicing and development costs from the fee simple value of the leashold lands.

The tenants' spokeswoman is Kerry-Lynne Findlay, a lawyer who is running for the Canadian Alliance party in the federal election. Findlay did not return our telephone calls to her law office or her campaign headquarters, but a campaign assistant, Kathy Scheideman, who identified herself as a tenant and who was also named in the Supreme Court judgment, spoke to Windspeaker.

"I can tell you that although this was the best case scenario for this narrow window that was addressed in the courts, it is certainly not a resolution to our problems."

Information supplied by DIAND shows that on Sept. 20, 1999, DIAND sent a notice of default to five tenants who had made no lease payment since 1995 and 68 tenants who had made no 1999/2000 lease payments.

By March 14 this year, "32 tenants paid with post-dated cheques, 22 have paid at the 1999 level ($10,000), two have paid at the 1999 level, two tenants are fully paid at an average of $22,800, 13 tenants claim hardship, two tenants have not responded," the DIAND document states.

Scheideman said the rent increase won't force them out.

"We can't get out if we want to. We can't sell these homes. They're totally a liability. You can't give them away. I tried to give my home away to the Liberal government about a year ago. I tried to donate it as an auction item in a Liberal fundraiser, but they wouldn't accept it.

"We still are disenfranchised, we still have no asset, and we're going to have to renegotiate this all over again in a few years and w still have no control over the taxation rate that the band decides to impose on us."

She said, "they have doubled our city taxes, what we were paying to the city. And we were guaranteed in our lease that we would pay our taxes to the city and have political representation by the city . . . and the federal government reneged on that part of the lease. The lease was with the federal government and they just broke it. And they will not listen to us, they will not talk to us, they will not sit down and talk to us and allow us to negotiate.

Scheideman said the tenants' attempts to work things out with the Musqueam band over the past 10 years have been "an exercise in futility."

Keith Phillips, the Justice Department lawyer who was one of the lawyers representing the Crown in the Supreme Court action, said "Indian Affairs did appoint a facilitator (Glenn Sigurdson) in1999. That initiative was not taken up by the parties. . . . The tenants indicated that they were willing to talk; the band indicated that it was not willing to talk at that time, as the tenants had just declared a rent strike."

"But you know what," said Scheiderman, "the real fault here lies with the federal government. If someone is given absolute power, it is inevitable that they will abuse it. The government passed on, you know, awarded the band absolute power over us. In my opinion . . . a few people in the band are abusing the power that they have been given, but you know what, the rank and file band member is being abused as much as the leaseholders are, and they're not any happier about it than we are.

The UBCIC isn't happy either. So far as the effect the high court decision will have on future treaty land negotiations, Chief Phillip said he finds it to be "a very racist decision that panders to the business and corporate establishment. And the effect it's going to have on transactions on reserve lands is, it's going to totally undermine future negotiations with respect to land development on eserves. It will only serve to perpetuate our ongoing economic marginalization. I am just so deeply angered by this decision because it hamstrings our efforts to develop viable economies on reserves."

Chief Phillip pointed out that as a backlash to the decision, other people may decide to challenge rents set out in their own leases and decide to go to court to get them reduced.

"If we are willfully and purposely denied the right to develop our own reserve lands, you know, then we're going to look off reserve. We're going to aggressively pursue off-reserve land interests. We have no choice. So essentially, what I am saying is we're coming after the land that was stolen from us."

Chief Phillip said the BC treaty process, which he characterized as seven years of bad-faith negotiations on the part of the government, "is politically bankrupt . . . in the final stages of collapse." He said that situation, coupled with the Supreme Court decision, "puts us in a very dire predicament."