🚀 go-pugleaf

Wade Wofford wrote:
> 
> 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...
> > > > >
[..]
> > > 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,
> 
[..]
> 
> 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".

"Why is Australia in such a furore.." - Why do you think? It is the
same reason as everywhere else. People don't understand the issues.
People became worried over scare mongering over their homes, farms
etc. There had been a case in Qld, where Terra Nullius was upheld, but
that was in the local Qld Supreme Court. They got it wrong. A thing
like Terra Nullius does exist. Greenland and Iceland are classic
examples where it applied when the Norse settled there.

Things have settled down here now and claims proceed, and are granted
others are rejected. Nothing much changes. The areas are still
Australia and Australian Laws apply. Welfare benefits and taxes and
all the normal things apply there as elsewhere. I could write a whole
book on the questions you put, but this isn't the place for it.

But I guess that the real main point is this. The past is in the past.
Nothing can change that. You cannot dispossess other people who hold a
valid and legal title under the Laws of the Nation, and give that land
to another. It is merely a repetition of the original wrong and solves
nothing. What needs to be done is to move forward from the point we
are at presently. THAT is all that can be done. The Courts recognise
this.

> 
> > 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".

They became nationals whether they liked it or not. That IS history
and not at issue.

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

I don't. I don't intend to argue any particular single case - merely
the general principles involved so a better understanding can be had.

> > 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.  

You are right. Any law can be made if people vote in enough nutters
into a government to enact them. Hitler was elected after all! Every
"right" anybody has is always a CONDITIONAL one. It is better to
invert it and look at the responsibilities you have in society
instead. Laws after all create responsibilities, not "rights".

> Brute force can subsitute for
> actual legality, all too easily in many cases.

Those days are over now.

> > 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.

Well there IS an exception to the above. A government can purchase a
freehold and convert it back to Crown land - it can then come under a
Native title claim. The wording "previously stolen from them" is
emotive clap-trap to be avoided. It only leads to unproductive
arguments "Wasn't stolen, was allocated to..", "No it wasn't", "Yes it
was"... "No"... "Yes".....
 
> 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.

There is nothing preventing anyone buying land on the open market. It
retains its title in the form it was purchased. However the US doesn't
follow the British laws to that extent that I can argue them.

> > > > 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.

I'm not going to get involved with any US cases, individual cases in
particular - but I doubt your claim - who is the Sovereign you refer
to?
> 
> Native title is live and well in the lower 48.... and beyond.

In some cases I'm sure they are, in other they are not. But they don't
follow the same arguments as the British laws provide. Various
treaties complicates issues, as these treaties were supposed to ensure
independent Nations.

> > 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....)

You haven't grasped the concept of Radical Title yet. A Nation owns
Radical Title to land. Indians had Nations that did own the radical
title (at the time), a treaty is with an independent Indian Nation,
and a Nation CAN sell land as it owns the radical title - eg Alaska
sold by Russia. It was a treaty between two nations - therefor valid.
Native Title isn't a "Nation" and owns no radical title. It is merely
a title that sits on top of a radical title - like any other title.

> > 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.

That IS what I said. However my understanding is they have changed the
native title to a Corporate Title, with a corporate structure. The
purpose was to give the Alaskans the land, assist them for a limited
time (that has since run out) with huge sums of money and plenty of
assistance. In that time the Corporations had to become viable, self
sustaining units -or sell up. A Yank was here a few years ago studying
our Native Title system. He spoke at a meeting, and he was quite
amazed that someone here would know as much as I did about the Alaskan
situation, and confirmed my understanding.

> > 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.

Only in a geographic sense. Legally they are tied to the British
system.

> > 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.

Yes. It happens on certain Lease hold land here. It is heavily
dependent on the original wording of the leases. The Lease holder does
have priority, but it does allow access for hunting and traditional
use of the same land for the traditional people. But like in a claim
here, there is 13 different mobs (tribes, in your lingo) claiming the
same land.

Sure you could get together and say, "We all used this land, it is
joint holding we want". It means a SINGLE claim. What happens if ONE
mob out of the 13 is proven to have (A) abandoned it (B) did not have
a traditional contact with the land? They would be putting the whole
claim at risk of failing. I can just hear you say "Well just eliminate
them from the claim" - but then you are back to 13 different claims
again, if you do that.

> >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.

Again that is the sort of emotive clap-trap that will send people's
blood boiling - I can hear them yelling at you "*I* didn't steal
anything" - and they are right. The people of today didn't do it. It
was done back in history. You run headlong into the argument - "So let
the buggers that were chased off come back and claim it if they can".
They too are long dead. Keep your eye on the future, not harp back to
the past it serves no purpose. The past cannot be changed, no matter
what.
 
> > 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?

This is one of those statements that implies promises to take peoples
houses of them, take their farms of them, tear down power lines, rip
up roads and railways with a Native Title claim.... Yes a lot of that
is completely nutty, but SOME do actually believe it. It is this sort
of non-specific claim that generated angst among people. Add a few hot
head rednecks, and rebel claimants to that and you'll have shooting a
war. It HAS happened already over your way, once at least to my
knowledge a few years back.
> 
> > It was wrong back then and it is equally wrong today.
> 
[snip more of the same]
> 
> 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.

YOU CANNOT ALTER THE PAST!! Get that concept through your head. IF you
think it is possible, quick patent the time machine!

Native Title either exist or does NOT exist - simple as that.

> > 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.

That is the place for it - unless a special tribunal has been set up
specifically for such cases. Either way it has to be done properly
according to Laws.
 
> > 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.")

Don't be silly!
 
> > > > 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.

Many eg Zimbabwe... India... Australia... Britain... ie various. They
are references for you to look up, if you want to inform yourself.

> > 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.

*Sigh*.....  I specifically mentioned a difference between conquered
Nations and non conquered nation, just CLAIMED and held. WHY are you
still then talking about "Conquerors" when it doesn't apply??

Wade you may well be passionate about Native Title and all that. But
unless you start getting your feet on the ground, and start looking at
the issues in the cold hard light of reality, you really will not get
a grasp of what it is all about. Further more, you'll do more damage
to your cause than anything else when resorting to emotive clap-trap.
-- 

SIR -Philosopher Unauthorised
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