Share this Story : National Post Copy Link Email X Reddit Pinterest LinkedIn Tumblr

Dwight Newman: Government's Musqueam deal doesn't protect private property in Vancouver

But it doesn't seize private land and give it to the Musqueam, either

You can save this article by registering for free here. Or sign-in if you have an account.

The recent agreement between the Government of Canada and the Musqueam Nation in B.C. recognizing Musqueam rights and title “within” much of Metro Vancouver has elusive qualities. Those discussing it have struggled to know what to make of it and have ended up with some polarized depictions of it.

Enjoy the latest local, national and international news.

Exclusive articles by Conrad Black, Barbara Kay and others. Plus, special edition NP Platformed and First Reading newsletters and virtual events.

Unlimited online access to National Post.

National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.

Daily puzzles including the New York Times Crossword.

Support local journalism.

Enjoy the latest local, national and international news.

Exclusive articles by Conrad Black, Barbara Kay and others. Plus, special edition NP Platformed and First Reading newsletters and virtual events.

Unlimited online access to National Post.

National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.

Daily puzzles including the New York Times Crossword.

Support local journalism.

Create an account or sign in to continue with your reading experience.

Access articles from across Canada with one account.

Share your thoughts and join the conversation in the comments.

Enjoy additional articles per month.

Get email updates from your favourite authors.

Create an account or sign in to continue with your reading experience.

Access articles from across Canada with one account

Share your thoughts and join the conversation in the comments

Enjoy additional articles per month

Get email updates from your favourite authors

Sign In or Create an Account

Both sides’ versions have problems.

Dwight Newman: Government's Musqueam deal doesn't protect private property in Vancouver Back to video

Contrary to the suggestions that the sky has fallen already and the suggestions that nothing has happened, there are reasons for British Columbians and Canadians to be somewhat alarmed. With an emphasis on the “somewhat.”

Let’s back up a bit to unpack this. The Musqueam Agreement, officially called “šxʷq̓ʷal̕təl̕tən – A Rights Recognition Agreement,” was released in a stealthy Friday afternoon news release on Feb. 20 when many Canadians were on holidays. It started drawing attention only the following weekend, after some reporting by smaller media outlets and discussion on social media.

This newsletter from NP Comment tackles the topics you care about. (Subscriber-exclusive edition on Fridays)

There was an error, please provide a valid email address.

By signing up you consent to receive the above newsletter from Postmedia Network Inc.

A welcome email is on its way. If you don't see it, please check your junk folder.

The next issue of Platformed will soon be in your inbox.

We encountered an issue signing you up. Please try again

Interested in more newsletters? Browse here.

The agreement is around 30 pages. In some ways, it is an interim commitment to the idea of developing other interim implementations of Musqueam rights and title based on the law that would flow from judicial decisions about the Aboriginal and treaty rights clause in section 35 of Canada’s 1982 Constitution. This is not entirely new: the Musqueam had a previous agreement for a share of federal government revenue at the Vancouver Airport. But now there are two further such implementation agreements concerning fisheries management and marine management in the Metro Vancouver area. And more will now presumably follow.

But the new Musqueam Agreement is not just about holding talks. It also includes clauses about the presumptions behind those talks. These include a recognition by the Government of Canada of Musqueam rights and title “within” a large area covering much of Metro Vancouver. That potentially looks very significant when Aboriginal title is an exclusive ownership right and most of Metro Vancouver already has millions of people in it.

The word “within,” though, does not mean “all.” Some social media accounts have claimed that the federal government just transferred all of Metro Vancouver to the Musqueam, and this is simply not accurate. And it’s unfortunate that some of those claims got taken up and communicated in those extreme forms by some otherwise serious people who now make it tougher to have the important, sophisticated discussions that we need.

On the other side, the claim by proponents of the Musqueam Agreement that it has no effects on private property is not accurate either. The agreement does not contain any clause referencing private property rights, and its defenders have now said that this is because the federal government cannot change private property rights. There is a constitutional logic to the last part of the statement — but what the federal government has done is put an additional cloud over private property rights throughout much of Metro Vancouver and entered into an agreement that operates based on ongoing threats to private property.

The Musqueam say that they are not seeking to take back the land of individual homeowners, and that’s important to note. But much of their leverage in ongoing discussions based on the agreement comes from an ongoing, underlying threat in relation to private property. If the federal government has recognized Musqueam title within an area mostly in private hands, then the federal government needs to be ready to provide accommodations and compensation in response to claims there, or the discussions under the agreement are likely to reach its dispute resolution provisions, which, in the absence of a resolution, ultimately lead back to court.

Separation speed bump: Negotiating with First Nations News

Separation speed bump: Negotiating with First Nations

‘Her body was not there’: Mother describes finding daughter's charred remains in Halifax Walmart oven News

‘Her body was not there’: Mother describes finding daughter's charred remains in Halifax Walmart oven

Advertisement 1Story continues belowThis advertisement has not loaded yet, but your article continues below.document.addEventListener(`DOMContentLoaded`,function(){let template=document.getElementById(`oop-ad-template`);if(template&&!template.dataset.adInjected){let clone=template.content.cloneNode(!0);template.replaceWith(clone),template.parentElement&&(template.parentElement.dataset.adInjected=`true`)}});

Jerry Amernic: Canada's two-tier historical memory: Egerton Ryerson and Joseph Brant NP Comment

Jerry Amernic: Canada's two-tier historical memory: Egerton Ryerson and Joseph Brant

'The risk is real': Two tigers must be removed from residential property, says mayor of Ontario town Canada

'The risk is real': Two tigers must be removed from residential property, says mayor of Ontario town

What we know about Mark Carney shows how little we know our Canadian PM Canada

What we know about Mark Carney shows how little we know our Canadian PM

It’s also worth noting clause 7.11 in the agreement: “Either Party may propose to the other Party to include other parties with relevant interests in scoping discussions or negotiations including the Government of British Columbia, a Crown Corporation, an Indigenous group or organization, or any private party.” Look at those last words. The agreement specifically envisions the inclusion in future accommodation-related discussions of “private parties.”

The intersection of Aboriginal title and private property has a lot of legal action about it right now. Last August’s trial decision in the Cowichan Tribes case implying that Aboriginal title claims might take priority over private property ownership, and placing some private property in an uncertain position by also declaring it Aboriginal title land, has British Columbia in an understandable uproar. Meanwhile, on the other side of the country, the New Brunswick Court of Appeal in the Wolastoqey case stated in December that Aboriginal title claims could not lead to taking away private property (only to potential compensation from the Crown).

The Wolastoqey are appealing that ruling. And, as I noted last weekend on my Law for Breakfast substack, one of their reasons is that they want to make sure that Aboriginal title claims to private land can still generate obligations by the Crown under legal rules concerning the duty to consult. That means that when the Crown is approving a permit or licence on private land, it needs to consult with and potentially accommodate a claimant First Nation about the effects on its as yet unresolved Aboriginal title claim — this requirement could yet apply even to something like a land development permit on private land or a building permit on an individual home.

First Nations have not been seeking to take back lands from individual homeowners (at least so far), although the Wolastoqey were specifically trying to claim lands from some larger landowners. But they do need to maintain the threat. First, having a possible Aboriginal title claim on land means that any use of that land triggers the duty to consult. Second, it also enables the negotiation of compensation in the context of a threat of pursuing a claim against the land itself.

If courts say that there cannot be Aboriginal title-based taking of private property, then that affects what the Wolastoqey or others can claim under the duty to consult, and it limits the leverage the Musqueam can have in their ongoing negotiations in Metro Vancouver.

The Musqueam Agreement does not transfer private property in Metro Vancouver — nor could it. So, the maximum-decibel alarm of some overstates things and falls into error. But the rival claim that there’s nothing to see here is also false. The Musqueam Agreement is premised on maintaining ongoing threats against private property that do expand uncertainty in harmful ways, so some alarm is warranted.

Do British Columbians and Canadians wish to live in a state of being under implicit threats? Or have the Cowichan case and subsequent developments in this legal and policy space now fundamentally transformed what attitudes there will be to the often-elusive set of initiatives grouped under the broad terminology of “reconciliation”?

We need more creative leadership and vision than seen thus far — in politics, in the courts and in other leadership roles — to navigate through the challenging questions at hand and the increasingly perilous state of Indigenous/non-Indigenous relations.

Share this Story : National Post Copy Link Email X Reddit Pinterest LinkedIn Tumblr

Postmedia is committed to maintaining a lively but civil forum for discussion. Please keep comments relevant and respectful. Comments may take up to an hour to appear on the site. You will receive an email if there is a reply to your comment, an update to a thread you follow or if a user you follow comments. Visit our Community Guidelines for more information.

Best Amazon Canada deals this weekend: Home, tech and more Take advantage of these Amazon Canada deals before they're gone 2 days ago Deals

Best Amazon Canada deals this weekend: Home, tech and more

Take advantage of these Amazon Canada deals before they're gone

Trying to ditch your phone before bed? We tested the Hatch Restore 3 smart clock Sleep testing the smart clock that helps build phone-free bedtime routines 2 days ago Sleep

Trying to ditch your phone before bed? We tested the Hatch Restore 3 smart clock

Sleep testing the smart clock that helps build phone-free bedtime routines

The Canadian-made storage bed that finally fixes bedroom clutter Sundays’ Dream Bed has a large hidden storage compartment 2 days ago Sleep

The Canadian-made storage bed that finally fixes bedroom clutter

Sundays’ Dream Bed has a large hidden storage compartment

Advertisement 2Story continues belowThis advertisement has not loaded yet, but your article continues below.document.addEventListener(`DOMContentLoaded`,function(){let template=document.getElementById(`oop-ad-template`);if(template&&!template.dataset.adInjected){let clone=template.content.cloneNode(!0);template.replaceWith(clone),template.parentElement&&(template.parentElement.dataset.adInjected=`true`)}});

Collecting travel rewards? Avoid these mistakes for a better payoff In the world of travel points, hoarding is a trap and 'earning and burning' is the only winning strategy 3 days ago Travel

Collecting travel rewards? Avoid these mistakes for a better payoff

In the world of travel points, hoarding is a trap and 'earning and burning' is the only winning strategy

Endy's first Toronto warehouse sale offers up to 60 per cent off mattresses and more Take advantage of limited-time deals from March 12 - 15 3 days ago Deals

Endy's first Toronto warehouse sale offers up to 60 per cent off mattresses and more

Take advantage of limited-time deals from March 12 - 15

© National Post