ok, it's 9pm. i got a can of ketchup pringles and a 1L of lime perrier, and i'm learning myself up on Indigenous land rights and title. i have a lot to read up on and if ur interested, i will note what i learn in this thread. this is by far not comprehensive or even 100% correct.

100% correct in the sense that this is very surface level sharing and there are experts out there who know more! i realized today that i actually know nothing about the Marshall case and need to brush up on the historical cases that set precedent. this thread will be long.

so i guess to the best of my knowledge we start with the 1763 Royal Proclamation, which was issued by King George III and basically said that he (lol) now owned North America after Britain ~won~ the Seven Years War. This man gifted himself North America, like what?

what is important about the 1763 RP is that it states that Aboriginal title has existed and continues to exist, and can only be extinguished if ceded through treaty. This is kind of the closest we come to Nation to Nation in settlement, even tho that man gave himself the lands.

In the 1763 RP, it forbid settlers from claiming land from Indigenous peoples, UNLESS that land was FIRST purchased by the Crown and then sold to the settlers. So, only the Crown can buy land from Indigenous peoples.

This is a very complicated piece of paper. The good is that it entrenches the recognition of existing Indigenous rights and title, including the right to self-determination. From 1763, and the claiming of North America, it is stated that we have rights and title to our lands. BUT

BUT it also creates:
1) a way for rights and title to be extinguished (treaties, purchasing from the Crown)
2) creates the paternalistic relationship of colonial recognition of inherent rights that exist from time immemorial

it sets forth the paradigm we are in now: looking to the state for recognition of our inherent rights and sovereignties of ourselves and our lands. it puts us in a perpetual catch-22 of wanting sovereignty but having to ask the government for sovereignty in colonial legislation.

BUT it also sets the precent we can use TO make claims to take back our inherent rights to our sovereignty and to our lands. i'm going to skip over the numbered treaties and government policy (sorry) and more onto rights and title cases regarding rights and title.

at the end of this thread i'll drop all the sources i am reading from

210 years later, Calder v. Attorney-General of British Columbia (The Calder Case, 1973) occurs, in which, in 1967 Frank Calder and other Nisga'a Elders sued the BC gov't declaring that their title to their land have never been ceded.

Essentially what happened is that in the BC Supreme Court and the Court of Appeals, their claim was rejected. So they were like ok byeeeeee and went to the Supreme Court of Canada for recognition of their title.

The Supreme Court of Canada was like, well actually yeah, Nisga'a rights and title existed at the implementation of the Royal Proclamation of 1763. This was the first time the Canadian courts had acknowledged that Indigenous title to land existed outside of colonial law.

Sadly, the case did not pass the Supreme Court b/c some judges argued that Nisga'a right was extinguished through confederation, one judged dismissed the case on a technicality. three other judges passed the vibe test though, and said Nisga'a rights had never been extinguished.

The Calder Case did create the process for Indigenous peoples to claim title to their territory. Let that sentence sink in for a second though. This case relied on 210 year old proclamation that SAID we have title, to set up a process, for recognition of Indigenous land title.

Does your head and stomach hurt? cuz mine does.

Buckle up for this next one, I remember learning about it in uni and my blood boiled then and now it's boiling again. I want to talk about R v. Guerin (1984). This case doesn't so much discuss the existence of title, but it outlines the federal fiduciary relationship...

to First Nations while also highlighting the really messed up relationship between the Crown and reserve lands. uggggh this case actually is so enraging and will make you hate golf courses a lot more than you probably already do (and should tbh).

in 1956, Musqueam held over 400 acres of reserve lands and the the Shaughnessy Golf and Country club just so happened to be looking for some land for rich white men to hit tiny white balls and drink over priced garbage whiskey on.

The golf club went to the department of indian affairs (DIA) and asked the lease 162 acres of the Musqueam's land. yes, you read that right.

Musqueam, denied legal representation, was told by the DIA that they would receive revenue from the lease. This is apparently how the DIA said they obtained Musqueam consent. Oh but wait, it gets worse my friends.

After the DIA "obtained consent", they RE-NEGOTIATED THE DEAL WITH THE GOLF CLUB AND LEASED THE LANDS UNDER VERY DIFFERENT TERMS THAN WHAT MUSQUEAM HAD CONSENTED TO.

Y U P. let that SINK IN.

Musqueam was told that, from a 75-year lease (which what?), the rent would be adjusted to fair market rates every decade (also, what?). The re-negotiated deal allowed the Club to only pay about 10% of market rent for the land.

oooooooooh this makes me mad.

This shady deal was kept from the Musqueam for 12 years, until a DIA employee let it spill to then chief Delbert Guerin. it took another 5 years for the Musqueam to find a lawyer to take this case, meaning that this went on for 17 years.

At first, Musqueam was awarded $10mil in compensation, but the government appealed the ruling and as such the compensation was repealed (sweet jesus christ). Musqueam then appealed to the Supreme Court of Canada, and in 1984, the SCC ruled in favour of Musqueam.

This case acknowledged that the federal gov't has a "trust-like" relationship, a 'fiduciary duty' towards First Nations peoples, in regards to reserve lands. As such, the federal gov't is OBLIGATED to act in FN best interest.

Section 18 of the Indian act specifies that reserves are held by the Crown and that the "governor in council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band."

In R. v. Guerin, it was decided that the gov't did not act in Musqueam's best interest by not consulting them regarding the revised lease.

.............

......................................................

woof.

ok i actually started in on the snacks i was saving for my date tomorrow night so i'm actually going to pause and pick this back up in the morning with R. v. Sparrow (1990), which brought us the Sparrow Test, which is very very important.

ok, good morning, lets back at it. R. v. Sparrow (1990), this is a precedent setting Supreme Court of Canada decision that created criteria to determine whether gov't infringement on Indigenous rights are justifiable through the Sparrow Test.

with settlement in the lower mainland, Musqueam's inherent fishing rights were infringed upon by settlers fishing the fraser river delta, eventually with non-Native fishers taking control of the fishing causing the gov't to set up regulations and licenses.

With these new regulations, Musqueam peoples were restricted to "food fishing" - fishing strictly for their own personal needs... sound familiar? now can you imagine, people settle on YOUR land, take over YOUR rivers, and then tell YOU what you can and cannot do?

But the Musqueam were like... no. it is our inherent right to fish this river and continued on their ways of life. In 1984, Ronald Sparrow was arrested for fishing with a net that was longer than was was permitted by his food finishing license.

Sparrow was found guilty in BC Provincial Court, and eventually an appeal was won in the BC Court of Appeals. In 1988, the case was brought to the Supreme Court of Canada, and in 1990, the court ruled in favour of Musqueam.

Musqueam outlined 5 arguments:
1) they retain the right to fish on the lands they have lived on for centuries
2) their rights have never been ceded tnhrough treaty
3) Section 35 of the 1982 Constitution Act upheld their right to fish

4) any infringement on their rights was invalid unless it was necessary for conservation, and
5) the net length restriction infringed upon their fishing rights and was not justifiable for conservation.

The SCC deemed that Musqueam's inherent right to fish had never been extinguished, and to support this cited Section 35: "existing Aboriginal and treaty rights are hereby recognized and affirmed." So, Sparrow had an existing right to fish at the time of his arrest.