🚀 go-pugleaf

Seppo Renfors <Renfors@not.ollis.com.au> wrote in message news:<3DF724FF.A28B165@not.ollis.com.au>...
> 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. 

Dear Seppo Renfors,

Nope.  Bluntly, rationalizations promolgulated by the invaders & their
descendants do NOT neccessarily have any bearing in reality.

If "no conquest was involved", why did White Canadians have to take
the land by force in many cases?  Why were WARS fought over possession
of the land, during the colonial era?  Why is the Canadian govt NOW
deciding that Canadian First Nations people have legal title to large
chunks of real estate most recently controlled by White Canadians?

No conquest?  Where is the documentation that White settlers were
INVITED into Canada and Australia?  Where are the bills of sale for
most of those continents?

Why is Australia in such a furor after having finally tossed out the
quaint but legally laughable concept of "Terra Nullius", which
fantasized that Australia hadn't been "owned" by it's inhabitants of
the last 40,000 years or more?  Why was force neccesary to allow
Whites to take possession of most of Australia, if "no conquest took
place".

> 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.

One problem is that most Natives (current, or ancestral) did NOT
explicitly consent to become "Nationals".

How do you rationalize Nunavut, by the way?  Or current efforts to
establish aboriginal land rights for Metis?

> 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. 

A more honest way of phrasing this is that ALL titles, and ALL rights,
exist at the mercy of the government.  Brute force can subsitute for
actual legality, all too easily in many cases.

> 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)

While not an expert in CANADIAN land law, this explanation does NOT
seem to jibe with what I have heard.  Nor with aboriginals winning
title to lands previously stolen from them.

And it certainly doesn't jibe with the situation in the United States,
where tribes have in certain cases purchased lands (not even
neccessarily once owned by them) & had them recognized as tribal lands
(with quasi-sovereign status) by the federal govt.

> > > 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). 

You'd notice it in MANY places.  I live in a part of California where
several dozen tribes reside on ancestral tribal lands within a several
hours radius.  I was BORN in Oklahoma, where tribes are even more
common and quite noticed....  In BOTH California & Oklahoma, as in
other states, tribes have in recent years reclaimed certain lands
illegally seized, as well as "added to" tribal lands (with all the
entailed sovereignty) by purchase.

Native title is live and well in the lower 48.... and beyond.

> 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. 

Nor can it be stolen by unscupulous outsiders.  Ain't that a bitch?

(And.... if it can't be sold, then treaty purchases would be no good,
either. It would ALL belong to the Natives....)

> 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.

Sorry, Native title exists in Alaska as well.  Just ask the feds.
 
> Not so in Canada. They follow the same Laws as we in Australia do,
> broadly speaking. 

Too broadly speaking to have any validity.  Their history of land law
is actually closer to the United States, in many ways.

> Because Native lands were historically very fluid
> between tribes, there can be several tribes who can have overlapping
> claims on the same land. 

Ever hear of joint use areas?  Of several people jointly owning the
same item?  Same principle.

>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.

No, that is an excuse to steal title to lands that you've already
chased the rightful owners off of.
 
> 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. 

But it's not their land, is it?

> It was wrong back then and it is equally wrong today.

There is a BIG difference between taking land away from the rightful
owners, and taking it away from the decendants of thieves & "fences"
in order to return it to the heirs of the rightful owners.

And a bigger difference between taking away land at gunpoint, vs
taking it away in a court of law.... with compensation of varying
degrees to any dispossessed occupants.
 
> It will depend on the Laws of Canada, and the Canadian constitution if
> a remedy is available. 

It is.  Like I said, Nunavut..... and a host of land claims in the
courts.

> 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.

One option is always to allow current "possession".... under Native
political control.  ("Wanna stay on the land? Fine, you're now a
resident alien, or maybe even a citizen, in a Native Nation. Obey
THEIR laws, & you'll get along fine.")
 
> > > 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. 

Which COUNTRY are you talking about, and WHEN.  Without context, that
is merely gibberish.
 
> 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.

What the Crown "claimed" for itself, does not always accord with what
it DID possess, legally speaking.  Conquerors claimed quite a few
things they didn't own.... and were later forced to relinquish.

Sincerely,

Wade Wofford.