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Credit to @JeffBooth for the link, and for "I double checked with lawyers".
Cassius writes:
We will tell you the punchline upfront: you are probably going to be told by courts in British Columbia, and potentially across Canada, that you do not own your own home or land. You probably think that there is some government solution that will result in the preservation of your interest in your property. But if there is, it will be extremely costly. And it may destroy Canada.
This is madness.
The private fee-simple owners inside the Cowichan Title Lands do not own their properties. They are occupying land that belongs to the Cowichan Tribes without the Tribes’ consent. They are trespassers on someone else’s property.
These private owners were told by the Crown, through the British Columbia Land Title Office, that the Crown (today His Majesty King Charles the Third in Right of Canada) had the underlying title necessary to grant them valid fee-simple ownership. The Land Title Office issued certificates of indefeasible title that were presumed accurate and conclusive.[13] Lenders relied on those certificates, and purchasers paid market value in good faith.
But the Supreme Court of British Columbia has now ruled that the Crown never had the underlying title it purported to convey. The Crown lacked the capacity to grant valid fee-simple interests in the Cowichan Title Lands because those lands were already subject to Aboriginal title. Every certificate of title issued by the Land Title Office for property inside the Cowichan Title Lands was issued in error. The purchasers bought nothing of legal substance, and the lenders secured nothing of legal substance.
Where the Government of British Columbia, acting for the Crown through the Land Title Office, told private owners and their lenders that they owned the land, the Court has declared that representation false.[14]
Now, the Cowichan Tribes have publicly stated that private owners cannot sell their properties without Cowichan consent,[15] and lenders are refusing to renew mortgages because the collateral is now legally defective.[16] In short, if a court concludes that your property is subject to Aboriginal title, the land is not yours. It never was. Your paper claim to title is worthless, except as it relates to a claim against the Province.
As I read, I was thinking that the federal government is just going to have to legislate around it, but the author covers that in detail and makes a strong case for why that is not legally feasible. Underlying that is the basic fact that there is no evidence of the political will to do so, and in fact, most Canadians and their representatives are of the opposite view, that in the name of "reconciliation", the land must be given to the descendants of its original inhabitants.
In short: no joy. There is no legislative fix, no Notwithstanding Clause escape hatch, and, we expect, no constitutional amendment path that does not require the consent of the very rights-holders whose title is defeating your fee-simple interest. The final point is uncertain, and we could be wrong. But there are strong legal precedents against there being a constitutional amendment that could take away these First Nations rights, even if there was sufficient political will to effect such a change. ... If you have read this far, your hope is dwindling or has already been extinguished. You likely now acknowledge that this is the reality we now face.
In British Columbia, approximately 95% of land has been claimed at least once (the vast majority of the province is “unceded” in the sense that no treaty ever surrendered Aboriginal title).[40]
If you are in a major urban centre, it is almost certainly the case that your land is subject to one or more claims. ... You have probably heard that there are ways around this. You may believe that your government has a solution. Neither of these assertions is true. The outlook is dire.
At what point does righteous become insane?
UPDATE: there are other legal opinions about this case, which are not so doom & gloom.
JFK Law argues that the tribe is not seeking to displace established private land owners, but seeking to redress British Columbia’s violation of Federal Treaties, which grants Aboriginal title over certain land, over which the provinces have no jurisdiction.
Aboriginal title and fee simple ownership are two distinct forms of property rights. Historically, in British Columbia, the Crown did not recognize Aboriginal title; rather, it assumed that it held title to the land and proceeded to grant those rights to settlers. This led to the exclusion of Indigenous peoples from their own territories throughout the Province. Cases such as the court case brought by the Quw’utsun Nation are about addressing these historical wrongs by the Crown and determining how these overlapping rights should be reconciled today.
In this case, the Quw’utsun Nation never asked the Court to invalidate the titles held by individual homeowners or private businesses and never tried to get those lands back. The Nation’s case is not about taking land from individual private property owners in the claim area.
The Nation has emphasized that they intentionally did not bring this case against individual private landowners or private businesses. In doing so, the Nation has in fact taken a respectful and responsible approach, aimed at reconciling their interests and those of the individual titleholders. Their case focused on holding the Crown accountable for its actions, not on challenging individual British Columbians.
Contrary to what’s being said by much of the media, the Court’s ruling does not “erase” private property. It does not mean that private property owners in the area over which the Court declared Aboriginal title no longer own their lands. Private fee simple interests continue to exist on these Aboriginal title lands.
So basically tribes in B.C. (at least) are suing the provincial government for having ignored Federal treaty rights for decades, and the remediation for that has yet to be determined, and the process could take another decade or two.
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At what point does righteous become insane?
I think we passed that point around 2015
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