Civil Law Property

Chapter II: Rights in Land of Native Peoples

 Historical Review

First Nations’ represent 3% of Cdn population of which 60% live on reserves. According to Prof. LeClair, they are “poorest of the poor”. There are 2400 reserves (most in BC), 60-80 Aboriginal Nations and 50 different language groups.
 Euro-Cdns have used a double language – partially recognising the sovereignty of indigenous peoples while consistently denying the legal rights of that portion of the population.
Royal Proclamation

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  Nations under the protection of the sovereign
  
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  Establish procedure where Aboriginal lands can be acquired by the crown – which was the only entity that could buy Aboriginal land.
  
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  Legal constitutional norm  recog here that the Aborig are in nations
  

After war of 1812

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  Aboriginal peoples lose status as military allies and the Fur-trade was in decline.
  
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  Become known as “The Indian Problem”
  

 First law respecting the Aboriginal populations was enacted in 1850 by the Province of Canada – was assimilationist in nature.

 Cases of 1880’s from PC characterized Aboriginal title as a usufruct  which is only in civil law. Further into the future, Civilian notion of possession is not used with Natives  use common law tradition
White Paper 1969

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  In this document there was a call to make all peoples in Canada equal. Wish to abrogate the Indian Act and make Aboriginal peoples “the same” as other Canadians – no special status.
  
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  The effect of the proposal, this document isolated Aboriginal people and allowed Aboriginal people to preserve their culture
  

SCC case in 1973

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  Aboriginal title not based on the will of the sovereign but, rather, the title is there b/c Aboriginal peoples were here first.
  

Indian Act Today

The act provides for collective right to the land and individual right w/in the band (sui generis rights  distinct right from common law use and benefit). Land (reserves) set aside by Her Majesty for the use and benefit of the band.

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  Collective right  denied to non-members of the band
  
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    Protected from seizure
    
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    Inalienable except to the crown
    

Crown’s has a fiduciary duty to the Aboriginal people – the crown is the trustee of their development. Legal title to the reserve is the crown’s (sometimes federal, sometimes provincial)
Problems: Underlying title could be provincial or federal. If it is federal, there are no problem as Feds have fiduciary duty to Aboriginals and, thus, if land is sold on behalf of the Band, the funds will be returned to the Band. However, if the title is provincial, there is not obligation to transmit the money back to the band upon sale of reserve land.
 Any land transfer to a non-member of the band is void.
Consequence of protection

1. 
   Very hard to get non-Aboriginal businesses on the reserve
   
2. 
   Protection of seizure (s.89 of the Act) 
   
   1. 
      Non-Indian can not have a hypothec on an immovable of an Aboriginal person situated on the reserve
      
   2. 
      Applies to tangible and intangible property  cannot seize income, car, etc.
      
   3. 
      Cannot be seized if its paramount location is on the reserve even if outside the reserve
      
   4. 
      Can be seized is situated off the reserve
      

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  NO credit is the result. Nothing can be seized. Inhibits development. Thus, there is an assumption  you can be an aboriginal and be part of the Capitalist society
  

3. 
   Rights of individual possession effected by collective protection
   
   1. 
      No Indian lawfully in possession of land unless allotted (s.20)
      
   2. 
      Could sell your certificate of possession to the band or another member of the band (must be approved)
      
   3. 
      NO INCENTIVE to improve an immovable on the reserve b/c they can only sell to another member of the band who “is probably as poor as they are”
      

Van der Peet test for Aboriginal Title  Id the crucial elements of the pre-exiisting distinctive societies. Must ID the crucial aspects of the society that existed prior to contact with Europeans. Where customs arose solely in response to the new contact, those aspects will not be protected. Culturally significant aspects shall be protected.

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   fossilized understanding. Oral tradition. How can you prove what was culturally signif
  
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  How can you ID what is “culturally significant” (switch in Francophone situation prior to conquest – makes no sense)
  

Delgamuukw Case: Rescinded portions of the Van der Peet test.

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  Aboriginal title is Right to land that is not confined to practices that were integral to culture prior to contact
  
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  In order to get title, must demonstrate that they had exclusive control over the territory before the Brits got here.
  
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  Use must be in harmony with nature of the rapport the Aboriginal group has with the land (can’t make it into a parking lot)
  

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  Aboriginal title  still inalienable to other than the crown
  
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    Crown is still the owner of the radical title
    
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    Collective right (community)
    
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    Distinct from normal civil law prop concept. (b/c of cultural dimension among others)
    

The Indian Act Intended to keep lands reserved for Native Indians. Key features: s. 18 Minister may authorize use of land on a reserve for schools, burial grounds, administration of Indian affairs etc. s. 20 Minister may issue a Certificate of Possession to members of band who are in lawful possession of a piece of reserve land. s. 24 No transfer of right to possession possible without approval of Minister. s. 25 Member of band loses right to possession upon leaving the reserve. s. 28 Cannot transfer right of possession to a person outside the band. s. 89 Real/ personal property of an Indian not subject to any charge, pledge, mortgage, attachmens, levy, seizure, except in favour of another band member.

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  Note how s. 89 shows that statute is not drafted with civil law in mind - uses CL terminology.
  
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  Act speaks of ‘certificate of possession’, but in civil law possession refers to a factual right; clearly not using the same concept.
  
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  Right of possession as defined by Act is quite limited: can’t be transferred at will, can be revoked. In civil law, key derogations from the right.
  
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  Indian Act does not apply to the Inuits
  

Act Respecting Lands in the Public Domain, s. 51 (provincial statute) says gov’t may reserve and allot, for the benefit of the Indians, the usufruct of lands. Notion of ‘equitable title’ alien to civil law. Still, concept of ‘usufruct’ in this context, with federal gov’t having a capacity as trustee (s. 52), is odd. Cantin: Only solution is to consider it a statutory usufruct. Conten varies, is indefinite, is inalienable (quite unlike normal usufruct); however, effectively conveys notion that a right in land remains with the state, and that Indian title relates to a real right. May argue that by ss. 51 - 52, bare ownerhip remains with prov. administrative power over property as trustee goes to federal gov’t, and statutory usufruct goes to Indians.

The James Bay Convention An attempt to reconcile conflicting Western/ Native perceptions of land. Related to northern pert of territory, where Hydro-Quebec sought use of lands for major project. Indian Act required liquidation of Indian title with compensation. Natives received (i) monetary comp. (ii) administrative power over their lands. Furthermore, territory divided into categories as follows: Category 1 - Land transferred in ownership in favour of a land-owning corp. whose members are members of these native groups (corp must be non-profit). Land cannot be sold - inalienable Category 2 - Not right of ownership  exclusive rights for hunting, fishing, trapping in favour of the moral person (ie. the corporation). It is the community that is going to decide how those rights are going to be exercised – provincial legislation re animals does not apply. Effectively a dismemberment: province retains land, may still engage in mining, authorize hydro-electric projects etc. Category 3 – Native claims is extinguished – renunciation of any claims to the territory. Native and non-native people have hunting rights, etc. Specific rights for Natives over certain species. Also, Native people have option to open camps for fishing and hunting (which Cantin-Cumyn says they will like “because that’s what they are good at….”) Cantin-Cumyn thinks the convention was a success because Native rights in land transferred into workable civil law concepts, yet from First Nations’ point of view ‘ownership’ remained a collective right.

 James Bay Convention

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  Path being used as a model in different parts of Canada. This convention arose following the projects to devel hydro elect in the north. Prior to the development of such projects, an injunction was granted against the government to force discussion of Native rights.
  
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  Involves the Cree, Inuit, Nas’kapines (sp?)