🚀 go-pugleaf

Wade Wofford wrote:
> 
> Seppo Renfors <Renfors@not.ollis.com.au> wrote in message news:<3DF489FF.9020905@not.ollis.com.au>...
> > Stephen Eggleston wrote:
> > > "James Bandow" <ae722@freenet.hamilton.on.ca> wrote in message
> > > news:at05v3$6lk$1@mohawk.hwcn.org...
> > >
> > >>Wade Wofford (kenuchelover@yahoo.com) wrote:
> > >>
> > >>: > So, about those North American land claims, and that apartheid
> > >>: > document that Canadians have enshrined in the constitution.
> > >>: > (The Indian Act)
> > >>: >
> > >>: > I find it null and void, and move that all anscestral land claims
> > >>: > be shelved, until all the facts are in, in the case.
> >
> > >>: The facts ARE in.  Ancestral land claims cases derive primarily from
> > >>: treaty rights, which are NOT dependant on anything other than the fact
> > >>: that the treaty was ratified by both parties.  But in any case, the
> > >>: facts DO show that modern Native Americans ARE descended from the
> > >>: PaleoIndian first settlers of the Americas.
> > >>
> > >>Right on Wade. It only matters WHO was here at the time of contact: when
> > >>Indian nations ratified land agreements with the British and French
> > >>Governments! It is irrelevant as to WHO was here prior to these contracts.
> > >>
> > >
> > > {SE} Unfortunately, you guys, the real problems involving land claims in
> > > Canada are not in those parts of Canada where treaties were signed (all
> > > sorts of other problems exist with regards to what Aboriginal rights involve
> > > and rights to self government, however).  The problem with land claims is
> > > largely in British Columbia, where almost no treaties were signed.  In this
> > > case, the Aboriginals never signed anything away.  Therefore, as they were
> > > the only ones there before contact, and never surrendered their rights, they
> > > retain the right to their land (or so goes the claim -- I would be most
> > > interested in any facts/legal argument that could seriously reach a contrary
> > > conclusion).
> >
> > You are partially correct. However Native Title to land has been
> > extinguished in many cases. Just because they never "signed it away"
> > doesn't mean they haven't lost it.
> 
> Dear Seppo Renfors,
> 
> Eh, I suspect that is open to argument.  At the very least, you'd have
> to prove that an entire generation of heirs willingly "abandoned it"
> in their minds, or some such. (see below).

No.
> 
> Even in cases of "extinguished tribes", the title itself wouldn't
> neccessarily be extinguished as well.... and would logically go to the
> closest related tribe (in the case that no lineal descendants of the
> tribe in question

Definitely not.

First of all one has to understand how how national "ownership" of
land works. In the case of Canada like Australia, it wasn't a
conquering of another nation. It was that of taking over a land - no
conquest involved. This means that the radical title of the land of
the Nation of Canada belongs to the Parliament - the governing body of
the nation, and representing the Nation (Government) - a legal entity.
The people of the land become Nationals of that Nation and have an
interest in the Government. This is very important to the issue - that
they do become Nationals.

The government can do whatever it likes with that land, as it owns the
land. No other person actually OWNS any land. The Government, at its
pleasure, can allow other people, corporations and entities to occupy
a piece of land -conditionally. The government may lease it, allow
mining on it or sell a freehold title to it -subject to rates and
taxes etc. All these other titles sit on top of that radical title -
at the pleasure of the Government.

Where Native Title comes in, is that when the Government acquired the
Radical Title to the land, it sits under all other existing titles -
and that includes that of Native Title. Which in turn means all titles
remain alive - at the pleasure of the Government, including that of
Native Title. Where the Government has in its "wisdom" (or ignorance)
used it for its own purposes - eg build roads railways and other
infrastructure. It has done so at its pleasure - and it no longer
pleased the Government to allow any other title to exist on that land.
If it happened to be Native Title, as it invariably was, then that
Native Title has been extinguished on those lands so used.

The Native Title has also been extinguished on any other forms of
titles the Government has -at its pleasure- allowed to come into
existence. Eg, Freehold and Leasehold. In some cases there may still
exist a co-ownership - for instance certain type leases.

Once extinguished, that's it. It is the end of Native Title on such
land forever. Native Title is not available on any new land, or for
transfer of any land held under another title presently. (This doesn't
prevent negotiations and amicable agreements made - but cannot be
enforced/created in a court)

> > On the other hand, they may well have good claims on land where they
> > have retained a continuous contact with the land they claim.
> 
> But even where they HADN'T retained continuous contact, a claim would
> still exist if "reasonable cause" existed preventing such contact.....
> such as current white "landowners" with shotguns and "no tresspassing"
> signs.  Or reservations were Indians were literally penned up,
> forbidden to leave under threat of death (as DID happen in the U.S.).
> Or cases were the Indians were relocated to reservations halfway
> across the continent, and placed in conditions that almost mandated
> extreme poverty....

USA and Canada have two completely different situations. USA conquered
a lot of the land, extinguishing any Native Titles by doing so.
However it has internally a number of other Nations - legal entities.
Often these were created under treaties etc, but when some white
people wanted it, the Indians got herded off onto reservations,
ignoring all these treaties to ever smaller and ever more useless bits
of land. These nations actually still exist, not that you'd notice it
though, except in some cases (eg the Grand Coulee Dam mob -I know the
Chief's daughter). Alaska was a different story as that was purchased
from Russia and Native Title survived there. It was consequently
divided of into Native Corporations, supported for a while and then
left to sink or swim. 

Native title, is really a shit of a title, because it can't be sold.
Therefor it can't be used as collateral either so economic development
becomes a problem. It is a community title that belongs to no
individual person, but to all of a particular people and their unborn
descendants. It is a land that has been inherited from one generation
to the next, by the whole people. In Alaska this was done away with
and the land is held by these corporation in the name of the
corporation - a legal entity like any other Corporation, but run by
the people themselves by properly elected boards etc.

Not so in Canada. They follow the same Laws as we in Australia do,
broadly speaking. Because Native lands were historically very fluid
between tribes, there can be several tribes who can have overlapping
claims on the same land. It is for this reason the continuous unbroken
contact with the land is necessary - so the right people get the
Native Title. It is the only proof of the land belonging to a people.

If people were forced off a land, at gun point, be it by troopers or
settlers is now history. You cannot right a wrong, but committing
another wrong. You cannot turn around and now dispossess another lot
of people of their land either. It was wrong back then and it is
equally wrong today.

It will depend on the Laws of Canada, and the Canadian constitution if
a remedy is available. 

Most constitutions require compensation for confiscation of property -
real property in particular. I would be most surprised if this did not
exist in the Canadian constitution as well. There may be a case
available for compensation under the Constitution. But I suspect
Canada may well have introduced a sunset clause for any claims, be
they for compensation or Native Title. This I don't know about.

> > This is
> > based on old British Law dating back to 1608. But this is only just
> > and fair. Why shouldn't the Native people have a right to inheritance
> > exactly the same as anybody else?
> 
> No reason, save perhaps in cases (among Natives) where Native
> inheritance laws take precedence?

Native Inheritance laws could only apply in a Native Nation - not for
Native Title land as in Canada. Canadian Laws apply there, but it is
in point of fact a recognised law of inheritance.

Here is a bit of reading material for you :

As the subjects of a conquered territory (Calvin's Case (1608) 7 Co
Rep 1a, at p 6a (77 ER 377, at p 384)); Campbell v. Hall (1774) Lofft,
at p 741 (98 ER, at p 895) and of a ceded territory (Donegani v.
Donegani (1835) 3 Knapp 63, at p 85 (12 ER 571, at p 580)) became
British subjects (Lyons (Mayor of) v. East India Co. (1836) 1 Moo PC,
at pp 286-287 (12 ER, at p 823); 1 Moo Ind App 175, at pp 286-187 (18
ER 66, at pp 108-109)), a fortiori the subjects of a settled territory
must have acquired that status. 

These are a few precedents used in Native Title cases under British
Law - as would apply in Canada. Here is a bit more, explaining Radical
Title in legaleese:

The Crown was invested with the character of Paramount Lord in the
colonies by attributing to the Crown a title, adapted from feudal
theory, that was called a radical, ultimate or final title:  see, for
example, Amodu Tijani v. Secretary, Southern Nigeria (92) (1921) 2 AC
399, at pp 403, 404, 407; Nireaha Tamaki v. Baker (93) (1901) AC 561,
at p 580; cf. Administration of Papua and New Guinea v. Daera Guba
(94) (1973) 130 CLR 353, at pp 396-397. The Crown was treated as
having the radical title to all the land in the territory over which
the Crown acquired sovereignty.  The radical title is a postulate of
the doctrine of tenure and a concomitant of sovereignty.  As a
sovereign enjoys supreme legal authority in and over a territory, the
sovereign has power to prescribe what parcels of land and what
interests in those parcels should be enjoyed by others and what
parcels of land should be kept as the sovereign's beneficial demesne.

-- 

SIR -Philosopher Unauthorised
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