If you walk the streets of any large Canadian city today, chances are you’ve seen the words “land back” spray painted on the sides of buildings. I was recently in Prince George to meet a client and saw a few such statements appearing on buildings there. One could say, I quite literally saw the proverbial writing on the wall.
The land back movement has also entered mainstream Canadian consciousness through the advocacy of artists. Well-known rock band Rage Against the Machine, for example, recently raised the profile of the land back movement at their concert in Ottawa this past summer.
The concept of the return of lands is at its core grounded in restitution. This is not the first redress movement in Canada. Japanese Canadians, for example, organized a redress movement which culminated in a settlement in 1988 with the federal government, in recognition of their expulsion from the West Coast during World War II.
In mid-August of this year, I read with interest that the Wei Wai Kum First Nation (Campbell River) and the Province of British Columbia signed an Incremental Treaty Agreement that will transfer 2,276 hectares of territorial lands back to Wei Wai Kum and help boost the Nation’s economic activities.
Clearly, lands are being transferred back to Indigenous Nations, and more frequently now and in larger tracts than in past decades. However, the question remains: are these tracts large and valuable enough, and do they adequately correspond to appropriate redress, all circumstances considered?
If the consensus answer is no from the perspective of Indigenous Nations, which I expect to be the case, then British Columbia can expect to see more title declaration lawsuits launched. The often-cited Tsilhqot’in Nation v British Columbia decision of 2014, one will recall, granted the declaration of Indigenous title to more than 1,700 square kilometres (656 square miles) of land in British Columbia to the Nation.
The reality is that Indigenous Nations tend to win redress-oriented actions involving lands. The reason for this is patently obvious, namely, Indigenous Nations used and occupied Canada prior to the arrival of European settlers.
The reality is that the land back movement is still embryonic. It is just getting started. At the risk of oversimplification, the Crown has a stark choice to make. Step up, do the right thing, and proactively transfer back substantive tracts of land in a manner that does justice to the concept of restitution, or engage in bazaar-like haggling with the descendants of those who were dispossessed of their lands.
The former action has the potential to bring increased certainty to the existing Torrens system and private property regime, and to unlock wealth for the broad benefit of British Columbians and Canadians. The latter action, by contrast, will likely frustrate such certainty and related wealth creation. For example, will private property (fee simple land) remain off the proverbial land back table going forward, or will its legitimacy be increasingly challenged in the years ahead?
In my view, there is a bargain to be made, one which simultaneously promotes economic certainty, restitution, and the private property regime, which is a cornerstone of our democracy. There is a limited window in which to act — is the Crown prepared and able to see the proverbial writing on the wall?